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2_ 



REAL ESTATE RECORD 

GUIDE TO BUYERS AND SELLERS 
OF REAL ESTATE 



HOW TO DRAW A CONTRACT. 



,^^ 



GEO. Wr'^VAN SICLEN. 
Counsellor-at-Law. 



When I can read my title clear."— I>r. Watts. 



SECOND EDITION. 




Together with 

THE REAL PROPERTY LAW 

of the State of New York, which takes effect October 1, 189G. 

INDEXED. 



THE REAL ESTATE RECORD AND BUILDERS' GUIDE, 
Publishers. 
14-16 Vesey Street, New York, .. ' >- ~ Vri 

1896. . ''^-^'S^ff^^^ 



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Copyright X896 

By the Reai. Estate Becobd Association 

16 Vesey Street, New York. 



CONTENTS. 



Preface ...... i-ii 

Guide to Buyers and Sellers of Real Estate . 1-5 1 

A Form of Careful Contract . . 52-54 

Simple Form of Contract .... 54-55 

A Good Form for Exchange . . . 56 

Index to " Guide to Buyers and Sellers" . . 57-58 

The Real Property Law .... 59-125 

Schedule of Laws Repealed . 126 

Analytical Index to The Real Property Law 127-165 



Printed by 
The Recokd And Guide 
227 william st., x. y. 



PREFACE. 

It is certainly pleasant to have one's publisher insist on a 
second edition. The three thousand copies of the first edi- 
tion of this Handybook were some time ago exhausted. The 
Title Guarantee and Trust Company, of New York, which I 
planned and founded in 1883 upon the lines laid down herein, 
has grown, under other management than my own, from a cap- 
ital of $500,000, to have a capital and surplus of about §4,500,- 
000, and transacted in 1895-6 a business of over $20,000,000. 

But few changes need to be made in the text of the book. The 
New York Court of Appeals has recently, May, 1896, differed 
from my views in regard to a quitclaim deed (see p. 31), and 
held in the case of Wilhelm vs. Wilken, that a purchaser by a 
quitclaim deed can be a bona fide purchaser for value without 
notice, and protected by the Recording Act. 

In affirming this proposition the opinion of the Court which 
was prepared by Justice Gray, and in which all concurred, stated: 
"The practice of transferring title to real estate through quit- 
claim deeds has not been uncommon in this State, and, in the 
absence of any facts creating a suspicion as to the transaction of 
transfer, there is nothing especially significant in the use of such 
a mode of conveyance. The point is, what is effected by the deed; 
and where, as in the present case, the subject of the release and 
quitclaim is a certain particularly described property with all the 
appurtenances and all the estate, right, title and interest of the 
grantor, with the "habendum" to the grantee, her heirs and as- 
signs forever, a conveyance of the real estate, within the meaning 
of the act, is evident. The terms of such a deed imply that Tall- 
man professed to have an interest in the premises, which he could 
convey, and it is the duty of the Court to so construe a deed, pur- 
porting to convey land for a valuable consideration, as to give 
effect to the intentions of the parties, and to hold it to be a con- 
veyance of the land." 

I did not use to think so. 

And it is, perhaps, not necessary to require a husband to join 
with his wife in executing a deed (see p. 22), in view of the 
statute authorizing a wife to make a will or sell her real estate 
without the consent of her husband; but until the husband's 
right by the curtesy is explicitly abolished by law, situations 
can arise in which a careful conveyancer may be in doubt as to 
whether there may not yet be a husband living who could claim 
a life estate in property his wife had conveyed. 

Many of the reforms suggested and indicated in the first edi- 



PREFACE. 

tion of this book, having been also independently suggested 
and urged by Mr. Dwight H. Olmstead, and by other able law- 
yers interested in the public welfare, have been adopted by 
the State Legislature, and short forms of deeds and mortgages 
have been legalized and encouraged, and the "Block system" 
adopted for New York City and Brooklyn for recording and in- 
dexing conveyances, etc., as against the parcel of property 
rather than the name of the grantor. 

The methods of transferring ownership, and of mortgaging 
real estate can be still greatly simplified; it can be dealt in by 
the use of certificates like certificates of stock, or warehouse 
certificates; but the time has not yet come. In the meantime, 
however, since the first edition of this book appeared in 1885. 
several good statutes have been passed by the New York Legis- 
lature effecting great saving of labor and simplicity of plan in 
recording and indexing transfers of real estate. And finally in 
1896, a Real Property Law has been passed, to take effect Octo- 
ber 1, 1896, which is intended to embody all the statutory law of 
New York upon this subject. The commissioners for codifica- 
tion seem to have done their work well; it will take time, how- 
ever, to prove it. That Code is printed as a necessary Appendix 
to this volume. 

The passage of that law has rendered useless quite a number 
of notes and remarks intended for this second edition; but the 
Index to it appended hereto will be found worth the price of this 
^ook. QEO. W. VAN SICLEN. 

No. 132 Nassau street, New York, July 1, 1896. 



REAL ESTATE RECORD 

GUIDE TO 

Buyers and Sellers of Real Estate. 



When a man has decided to buy a house and lot, or a vacant lot, 
or a farm, the question arises, what shall he do to protect himself 
in making his -written contract for the purchase ? 

For while occasionally men are found foolish enough to pay for 
their land first, and take their chances as to faults in the title turn- 
ing up afterwards, very much as many plunge into matrimony, 
m.arrying in haste to repent at leisure, yet the opportunities for 
thorough investigation are so ample in the former venture, that few 
make it until they have taken time to investigate ; and besides prep- 
aration usually has to be made for the payment of the price. 

Take Time. — Assuming, then, that you will certainly not risk 
your money without having the title searched, take care first to 
allow yourself ample time for this before the date when you are to 
take your deed and pay your money. The customary time is thirty 
days ; iind the reasons why so long a time must be allowed, at least 
in large cities like New York, are these : In the first place the law 
says that the County Clerk and the Register shall have twenty days 
to make their returns to your searches after you put the latter in ; 
and if you want your work done any sooner, of course you have 
to pay extra for it ; for instance, if the lawful charge for the 
necessary official searches against your piece of property were twenty 
dollars for the County Clerk and thirty dollars for the Register, and 
you want them, done in a week, you will have to pay fifty per cent, 
extra, that is ten dollars more to the County Clerk and fifteen dol- 
lars additional to the Register, to get them in that time ; and very 
properly so, for to accomplish such an amount of labor, the careful 
official searchers have to work, to dig into the volumes of records, 
night and day. Iln the city of New York alone there were twelve 
thousand two hundred and sixty-two deeds recorded during the year 
1884, conveying houses and lots for the expressed consideration of 
one hundred and eighty-two millions of dollars ; three thousand 
and sixty-one of those deeds were for nominal considerations, and 
probably were only for the purpose of curing defects in titles, or by 
way of gift from parents to children, etc. ; that would make nine 
thousand two hundred titles to be searched for the purchase of 
■Droperty ; but besides this there were ten thousand two hundred 



4 REAL ESTATE CONTRACTS. 

and thirty- nine mortgages recorded for one hundred eighteen mil 
lions of dollars ; this would require nineteen thousand four hundred 
searches to be made by the corps of official searchers in each of the 
before mentioned offices, in the year of three hundred and five 
working days or orer sixty-four searches for each day ; and the 
deeds and mortgages in the Register's office alone are contained in 
thirty-seven hundred and sixty-five huge volumes, the indexes to 
which must be carefully examined ; so you see you must give time 
for the searchers to do your work, and you ought very properly 
to pay them extra if you crowd them. But your lawyer who is 
to examine your title must have two or three days to look into the 
abstract and papers that you should get from the seller, so as to 
know just what official searches (and how few of them as possible), 
to have made ; and then after the official searches have been made, 
and certified to by the Register and the County Clerk, and paid for, 
your lawyer must go to the books of record, and take down each 
volume cited, and examine it carefully to see exactly what the 
instrument contains, and that it makes your title good ; and that 
takes several days more ; so that thirty days are a proper and reason- 
able time for an ordinary title ; if you are buying a big Westchester 
County farm of several hundred acres, made up of thirteen smaller 
farms, so that there are really thirteen titles to examine, thirty days 
are not long enough. 

Examine the Title. — Many otherwise intelligent people do not 
understand at all the work which a real estate lawyer has to do, 
and to be fit for which he must study night and day all his life, and 
they think that if an official search from the County Clerk and 
Register only comes back showing a connected chain of deeds clear 
from judgments, that that is all they need to know, and that the 
lawyer has nothing to do. 

This is one of the gravest of errors. 

The Register, and County Clerk, don't know anything about the 
correctness of your title ; this is not in the least to their discredit : 
they don't pretend to know ; it is not their business, nor their duty, 
to know if the title be good ; they only tell you at what pages in what 
books of record in their offices you can find deeds and mortgages, 
etc., which affect the piece of property you inquire about ; but how 
the property is affected, you must find out for yourself, and for that 
you must employ a man learned in the law. It is really surprising 
how many otherwise able business men misunderstand this, to their 
great risk. I have in mind now the head of a large house, liberal, 
fair, but who frequently employs to " examine " the titles of the 
houses he buys, a very honest, worthy, intelligent real estate broker, 
who has bought and sold and inspected and insured many houses, 
and who is a very safe guide as to values, and who knows how to 
make out an official search, but who knows no more about the con- 
struction of wills, and deeds, and statutes, than a lawyer knows 
how to make a watch ; but my friend employs him, and congratu- 



REAL ESTATE CONTRACTS. Q 

fates himself from time to time that he is saving another hundred 
dollars. 

A fair toast at a dinner of the Bar is * ' Here's to the man who 
draws his own will, and searches his own title !" 

It is not to be wondered at that those who buy real estate, or who 
borrow on bond and mortgage, grumble and rebel at the bills which 
they have to pay their lawyers for the examination of title ; but 
it is not the lawyers' fault : it is largely the result of circumstances 
which ought to be and can be corrected ; which are partly due to 
the enormous growth of dealings in real estate ; and which must 
soon be corrected, or it will be physically impossible to examine a 
title in a reasonable time in the City of New York. 

Multiplication of Fees. — Not long ago the Jumel property was 
cut up into thirteen hundred and eighty-three pieces or parcels of 
real estate and sold at partition sale. There appear to have been 
about three hundred purchasers at that sale, and no doubt each 
buyer, before he paid his money, carefully employed a good lawyer 
to examine the title to the lot or plot that he had bought ; so that 
probably three hundred lawyers each of them carefully examined 
and went through the same work — viz., the old deeds and mort- 
gages and records ajffecting the whole property (for as it had never 
been cut up before, each had to examine the title of the whole, no 
matter how small his parcel), and each of them searched the same 
volumes of long lists of names and picked out from the thirty-five 
hundred volumes of deeds and mortgages then in the New York 
Eegister's office the same big, dusty volumes of writing, and lifted 
them down and looked them through — in all three hundred times 
the very same labor. 

Evidently two hundred and ninety-nine times that labor was 
thrown away — done over and over again uselessly. 

And the clients, those buyers, together paid three hundred fees 
to those lawyers, who each earned his money, but evidently two 
hundred and ninety-nine of those fees v/ere for repetitions of the 
very same Vv^ork. 

By and by, twenty years from now, instead of only three 
hundred owners of those Jumel plots, the whole thirteen 
hundred and eighty-three lots will be sold and built upon, 
and thirteen hundred and eighty-three new purchasers will 
again pay thirteen hundred and eighty-three lawyers thirteen 
hundred and eighty-three fees for examining that same Jumel title, 
only the fees will be larger, for there will by that time (at the pres- 
ent rate of growth, and unless a remedy be soon applied) be fully 
ten thousand big folio volumes in the Hall of Records, and the 
whole thirteen hundred and eighty-three fees will be for mere rep- 
etitions of labor so far as the whole Jumel estate title down to 1883 
is concerned, and will be practically wasted. 

Fees. — Not only that, but to-day, in examining that title for a 
purchaser, his lawyer carefully puts in ofiScial searches. He makes 



6 REAL ESTATE CONTRACTS. 

a requisition on the Register for all deeds, conveyances, mortgages 
and instruments in writing on record in his office affecting the par- 
eel whose title he is examining, and, of course, the Register care- 
fully returns on his search all the old deeds, &c., affecting the 
whole property — because they affect the parcel — and he charges and 
gets by law five cents for each year for each name searched against 
for deeds, and five cents per year per name for mortgages. Alto- 
gether, say $30 is paid by each purchaser for those searches; but as 
there were three hundred purchasers, and they put in three hundred 
searches, the Register gets three hundred times twenty dollars for 
the same work; and twenty years hence thirteen hundred and 
eighty-three purchasers will again pay the then Register thirteen 
hundred and eighty-three times twenty dollars, or more, for a 
search showing those very same facts. 

But this is not all. In the County Clerk's office are the records 
of judgments and of notices of suits brought affecting the title to 
real estate (lis pendens, lawyers call them), and of mechanics' liens, 
certificates of Sheriffs' and Marshals' sales, insolvent assignments, 
general assignments, foreclosure by advertisement, appointment of 
receivers, appointment of trustees of absconding, concealed, non- 
resident or imprisoned debtors, and the law gives the County Clerk 
five cents per name per item per year for his search, and fifteen 
cents per year for judgments, or say, seventy-five cents for every- 
thing against one name for a year. So the three hundred pur- 
chasers of the Jumel property go to the County Clerk, and each 
pays him, say, twenty dollars for his search, being the sauie thing 
uselessly repeated and the money wasted two hundred and ninety- 
nine times; and twenty years hence it will all be paid over again 
thirteen hundred and eighty-three times. 

But then the purchaser is not done. He must put in searches 
with the United States Commissioners and pay them about $1.25 for 
their return, and the Clerk of the United States District Court for 
bankruptcy and judgments charges $1, and the Clerk of the United 
States Circuit Court for judgments must be paid $1 ; and each of 
those items, like the Register's search, is to-day uselessly repeated, 
and the charges therefore wasted two hundred and ninety-nine 
times; and twenty years hence on that same property will be again 
thrown away thirteen hundred and eighty-three times. 

This sort of thing is daily repeated, year in and year out, in this 
city, over the whole of its surface. The blocks of land bounded by 
Fifty-fourth and Fifty-seventh Streets and Sixth and Eighth Ave- 
nues were once all one estate, like the Jumel estate. They were the 
Cozine property. Between Eighty-third and One Hundred and Sixth 
Streets from Third to Eighth avenue, diagonally across, were the 
Harlem Commons, and many New Yorkers can remember when the 
Murray Hill farm, from Thirty-third Street to Thirty-eighth Street, 
and between Madison and Lexington Avenues, was cut up into lots 
and sold. And thus th© whole surface of this city can be mapped 



P.EAL ESTATE CONTRACTS, 7 

out — in fact is mapped out — into old farm titles, each of whicli is 
the original source of title of several hundred houses and lots. 

And the same thing happens in regard to loans on bond and mort 
gage. Every man who thus lends money must have the title ex 
amined, and very properly so, and the borrower has to pay for it — 
the same old searches against the same old names — and pay the 
same old fees. 

The tax which the real estate of New York city thus annually 
pays amounts to more than one per cent, of the real value of the 
property sold and mortgaged ; and it is safe to say that at least one- 
half of this burden is the result of useless repetition, of the want of 
a good system in responsible hands, and is thrown away. 

In the year 1882 there were nine thousand nine hundred and sev- 
enty-five deeds and ten thousand five hundred and sixty-six mort- 
gages recorded in the office of the Eegister of the City and County 
of New York. Thus there were at least twenty thousand titles 
examined and twenty thousand fees paid and twenty thousand sets 
of searches paid for the same during that time. In 1883 it was 
vdneteen thousand five hundred odd, and in 1884 over twenty-two 
thousand five hundred. 

BilL — The bill for examining title to the land for the new United 
States Post Office in Brooklyn was between $7,000 and $8,000; but 
an ordinary bill for examining the title and for a set of searches 
for a house and lot worth, say $10, COO, will contain items something 
like these (they are taken from a bill lately rendered) : 
"William Client, 

To Joh:: Counsellor, Dr., 

To copy of abstract $10 00 

To affidavit of John Smith (that he is not the John Smith there 

is a judgment agatast) 1 00 

To affidavit of WiUiam Jones 100 

To paid for tax search 13 00 

To paid for Register's search 22 45 

To paid for County Clerk's search 34 15 

To paid for United States District Court search 300 

To paid for United States Circuit Court search 2 10 

To paid for United States Loan Commissioners' search 2 50 

To paid for certificate satisfaction Brown mortgage 25 

To paid for recording deed 1 85 

Copy of Abstract. — If we examine these items (and all who 
have had experience in the matter will say that this is a very mod- 
erate, small bill), we find '' copy of abstract." Why should the old 
chain of title be copied over and over again ? "Why not have it 
done once for all and thoroughly by a responsible party, and ffied 
where access can be had to it at any time ? 

Judgments. — Then look at the affidavits. Perhaps nine years 
ago a judgment of $100 was filed against some impecunious John 
Smith, and every time any one of the rest of the two columns of 
John Smiths listed in the New York City Directory, and every time 
each of his grantees has sold land or borrowed on mortgage, he has 
had to make a similar affidavit — that he is not the man against 
^hom that judgment was obtained. 



8 REAL ESTATE CONTBACTS. 

What's the use of the old judgment, anyway ? If it was obtained 
against a man who had any property, it would have been long ago 
collected (unless he appealed from it, and then he must have given 
security); and who ever knew a judgment nine years old to be col- 
lected out of the debtor's real estate ? 

But our law ties up and tangles up the property for ten years, to 
the damage of everybody except the real debtor. If a judgment 
should be a lien on real estate at all, it should be for not more than 
one or two years. 

Tax Search.— But to go back to our moderate bill — *' tax search, 
$13." There certainly ought to be (and there is) a way of noting 
on the expensive tax maps and tax books of this city (for the cost 
of which every tax-payer has already paid his share) every unpaid 
tax or tax sale or assessment affecting each particular lot, so that it 
could be seen whether it were clear or not without paying a fee 
equal to the whole annual water rent of a medium-sized house. 
And this has been lately accomplished in the Brooklyn Tax Office 
by a system for ascertaining the arrears of taxes and assessments, 
on the plan of indices against localities and not against names. 

Of the Register's fees we have already spoken. It is calculated 
that for the sixty thousand titles he received in 1883, 1883 and 1884 
at least $300,000 in each year, besides $40,000 each year for 
recording the deeds and mortgages. Probably $300,000 were paid 
to the County Clerk for his searches during each of the same years. 

While there are copyists and searchers to be paid in the Register's 
office, but fifty copyists at $10 a week each only take $26,000 a 
year off from the $340,000 receipts, and the searchers all receive 
" extras," as already explained. Heretofore no part of any of these 
fees has' gone into the city treasury, but while the Legislature in 
1884 put these officials upon salaries of $20,000 and $15,000 respect- 
ively, the foregoing fees must hereafter be paid to the city, which 
will be no relief to property owners. 

New York city real estate must be a very good investment to 
stand such a steady drain. 

The other charges for United States Courts and Commissioners' 
searches are for almost no work at all — for glancing over a half 
empty page of a small folio volume in each case. The money is 
thrown away, yet a careful lawyer must put in those searches to 
make sure that he has protected his client. 

"Wrong System. — Several causes have brought about or now 
contribute to this obviously wasteful, useless burden on real estate, 
but passing by all others, we may say that the root of all this 
trouble is the improper system of indexing deeds and mortgages by 
the names of the parties to them, which is cumbersome, expensive 
and full of errors in practice. 

If you go to the Register's office now to find if Mr. James Robin- 
son ever conveyed a certain lot on Broome street, you look through 
ieveral huge volumes of indices which are backed by the letter R, 



REAL ESTATE CONTRACTS. 9 

and every time you come across the name of James Robinson you 
note on your memorandum paper the book and page which you 
find written opposite his name; by the time you have gone tlirough 
the indices you have notes of perhaps two hundred conveyances by 
a man of that name, but you don't know whether any one of them 
is a conveyance of the particular piece of property on Broome street; 
there is nothing (nor can there be anytliing under the present sys- 
tem of name indexing) to tell you what piece of property is con- 
veyed by any one of those two hundred deeds that you have noted, 
BO you go deliberately to work and lift down the two hundred big, 
dusty tomes and find the proper page in each, and read through the 
three or four pages of manuscript and see if the Broome street piece 
be described in any one of them. 

And this is done over and over again, day in and day out, for all 
the names of all the prior owners of each of the twenty thousand 
parcels of land annually conveyed and mortgaged in this city. 
Evidently this is an enormous waste of labor and of expense, if only 
some way could be devised to prevent it. And again, the name you 
are looking for may have been misspelled or mispronounced and 
placed in the wrong column, and you may never find it at all, to 
your great loss; for there are so many names that the pages of each 
index book are ruled in columns right across both pages, and the 
name is put in a separate column, according to the first two letters 
wliich occur in the name, thus : 



^^ ^-— • 


Grantors. 


Grantors. 


Grantee. 


Lib. 


Page. 




L.a. L.b. L.d. 


L.e. L.f. L.h. 


** ** ** L.z. 








1883. 
Jan. 20. 


iJamont, Edward, 
et al. 






Daniel Jones. 


1,591 


393 


1883. 
Jan. 21. 


Lawrence, Wil- 
liam, 
Rebecca. 






James Mar- 
shall. 


1,597 


274 


1883. 
Jan. 22. 




Levy Abram. 




William Den- 
ison. 


1,598 


89 




* 








1 

1 



If a reader of Irish extraction were dictating to a German copyist 
for entry in that index the name of Mr. Abram Levy and should 
pronounce it *'Lavy,"he might be correctly understood and the 
name be placed in the second, its proper column ; but if a reader of 
either of the foregoing nationalities were dictating to an American 



10 REAL ESTATE CONTRACTS. 

bom citizen, the chances are that Mr. Levy's name would go out of 
place into the first column, and no searcher would ever find that he 
had made a conveyance, and our Court of Appeals has held that the 
index is no part of the record, so that if an instrument is recorded 
it is notice whether indexed or not. 

Again under this name system of indices, the transposition of a 
single letter in the spelling of a name may throw the searcher off 
his line of search entirely ; as in Greenbaum often spelled Gruen- 
baum, Miller for Mueller, etc. A case recently occurred in Brooklyn 
where a name was indexed as Fraendly instead of Traendly — and 
this for a mortgage. But the worst evil is in the enormous accu- 
mulation of written volumes (increasing at the rate of three hundred 
per year), through which the searcher must wade, entailing a labor 
almost physically impracticable ; by 1895, when tiiree thousand 
more volumes shall have been added, it will be impossible. 

Not only does the examination of these books and indices involve 
great personal labor and occupy much valuable time, but every 
conscientious searcher of titles knows where and how the running 
of long indices is attended with great responsibihty and risk to the 
searcher. A moment's abstraction of thought, a sudden interrup- 
tion or other slight cause may render him liable to miss some con- 
veyance or encumbrance seriously affecting the title under consid- 
eration. His continuous use of the indices is frequently prevented 
by the use of the books by others, when he must either wait his 
turn or break the order of his search by taking up other indices, 
thus adding another risk to this part of his duty. 

Right System, Locality Index. — The minds of practical men in 
various places have been independently drawn to this problem, and 
it has been found by all or nearly all of them who have stated their 
conclusions that the remedy for this great evil is to arrange the 
indices of the conveyances and mortgages upon a geographical 
basis and not to have a name index at all (except for judgments); 
to make it a locality index, so that a buyer or lender desiring to 
know all the deeds and mortgages and liens on record affecting a 
particular house and lot can turn first to a ward and block map, 
sometliing like the ward and block maps in the Tax Office of this 
city, and there identify by its number the parcel he is searching 
against, and then turn to another volume, which is numbered and 
paged to correspond with the ward and lot number, and find in 
that volume a page devoted to that particular lot, and on that page, 
in regular order, each occupying but one line, find every deed, 
mortgage and lien affecting that lot properly noted; then it will be 
a brief and easy labor to examine the specific volumes of records 
referred to. 

If such a method be carefully, systematically and thoroughly 
carried out, what an enormous saving of time, labor and money ! 

It is plain that the labor of keeping such a set of indices up with 
the daily records of deeds and mortgages is but a matter of detail. 



REAL ESTATE CONTRACTS. 



11 



For years the columns of The Record and Guide have weekly 
shown all the deeds and mortgages recorded in the Register's office 
the week before, and the same careful hand which furnishes those 
reports could continue to do so daily and clerks could daily assort the 
same and post each item in its proper locality. 

The chief difficulty to be overcome is to systematically, accur- 
ately and thorouglily extract from the thirty-seven hundred and 
sixty-five volumes now in the Register's office the items that are 
now in that huge collection and which must be posted each to its 
proper place. This, however, is a matter merely of time, of 
patience, of system, of cost. It would have been well under way 
now and largely accompKshed but for the opposition on the part of 
the Registers, who have refused to allow free access to the public 
records in their charge for fear that the fees of the office will be 
materially lessened, as indeed they will be, to the x)ublic benefit. 

The matter of passing upon the correctness of the title to a piece 
of property, after all the deeds, mortgages and liens affecting it are 
Known, is, of course, a very different thing, and requires the ser- 
vices of a studious, learned lawyer, as before explained. Many a 
will is void, for example, for trying to tie up property for more 
than the lives of two living people; but that would not appear on 
the searches; and scores of similar questions constantly arise; hence 
counsel will always be needed, and must be paid, for their study 
and labor and knowledge. 

But the full abstract of title of the old farms and large estates and 
large pieces of property in the city can be made up and thoroughly 
worked out and written or printed and well bound and indexed and 
filed away once for all; and the block maps can be colored so as to 
show on what old farm and under which of those old abstracts the 
lots come, and thus save the useless repetition of the larger half of 
this labor, while the later part of the title (since the partition or 
other subdivision of the old farm or estate) can be worked out in 
the usual way. Take, for example, a block in the Twentieth Ward. 



Thirtieth Street. 





RED 






4 


j 




cc 






GREEI 








v> 










/" 


S 









Twenty ninth Street, 



12 REAL ESTATE CONTRACTS. 

Let red be Mary Clark's estate, abstract No. 9, and green Clement 
C. Moore's estate, abstract No. 43. 

Suppose that that block lay partly in two estates, the Mary Clarke 
and the Clement C. Moore ; let us color red all in the former, and 
on the other side of the boundary line make the rest of the block in 
the Moore estate green ; one glance of your eye and you know the 
title down to the partitions of those estates, the abstracts of which 
are at hand, filed by the Nos. 9 and 43. This method with abstracts 
has been for some time successfully used for the three or four square 
miles of the neighboring village of College Point, in its Savings Bank, 
the charge for the examination of the abstract title (exclusive of 
official searches and papers and recording) averaging about twenty- 
five to thirty dollars ; the same system, or very similar, obtains in 
several large conveyancing offices in the city. 

The keeping up the chain of titles for a lot becomes thus a 
mere matter of book-keeping ; take for example lot number 1330 in 
the foregoing diagram ; in the first place 1330 is the tax number on 
the city assessment rolls ; in the next place the block betv/een 29th 
and 30th streets. Ninth and Tenth avenues, like every block in the 
city, is given a number of its own on the '* Guide-map," and a sep- 
arate volume of its own, the number of the volume corresponding 
with the number of the Block on the Guide-map ; there are seldom 
more than fifty-six lots, generally about thirty to forty, in any given 
city block, so that one hundred pages give ample room in each vol- 
ume ; then each lot is given one page, and the pages in the volume 
are numbered to correspond with the tax numbers of the lots, and 
are not numbered one, two, three, four, etc. ; thus in the foregoing 
diagram the pages in the volume for that Block would be numbered 
1827, 1329, 1330, 1332, etc. 

An Index page with diagram begins each Block volume. 

Turn to page 1330 for our example. 

On the top line are written the location and dimensions of this 
particular lot. 

On the next line. " Abstracts 9 and 23." This shows that we are 
to find the old farm titles of this lot (which have been so many 
times examined and approved), handsomely written out and filed 
away under those numbers, 9 and 23, the Mary Clarke and the 
Clement C. Moore abstracts. 

The next line shows the first recorded deed, with its book and 
page in the Register's office ; the next line the next deed or mort- 
gage, somewhat in the following shape: 

1330 

201 E. 10th Av., 24.9x99.11x24.9x99.11. 

Abstracts 9 and 23. 

Mary Clarke to Wm. Jones, liber 93, p. 267. 

C. C. Moore to Wm. Jones, Uber 100, p. 8. 

"VYm. Jones to Edw. Lawrence, liber 180, p. 45. 

Edw'd Lawrence to Wm. Jones, $10,000 Mtge., liber 127, p. 83. 

E<iw'd Lawrence to P. Wilkie, liber 201, p. 594. 

The clerk who writes in the mortgages always uses red ink ; this 



REAL ESTATE CONTRACTS. 13 

shows those liens at a glance ; when a mortgage is paid off and can- 
celed of record, one black line ruled through that line of writing 
shows the fact distinctly the same thing should be done with the 
lien known as Us pendens which shows that there is a lawsuit about 
that particular lot), and with mechanics' liens. 

Judgments, and all general liens allowed by law, will have f-o be 
entered in a separate volume indexed by the names of the parties af 
fected. 

Of course, it will occur that some deeds and mortgages will in- 
clude and cover many lots, and will have to be "posted" on the 
page of each separate lot, just as the ** Abstracts" are. 

There are a number of little details about the particular lot, and 
the particular deed or mortgage or tax sale or lien, that can be 
noted on the particular line of the latter. 

But each item affecting the title has its own line. 

Assuming that something is done or occurs once every five years 
to affect a lot, twenty lines would show the record of a hundred years, 
which carries us back to the time when nearly ail of the present 
City of New York was in farms; (I myself remember walking with 
my father up to the country at Fourteenth Street and Broadway); 
and a fair ledger page contains fifty to sixty lines, so the account of 
a lot once begun will last quite awhile before it need be simply con- 
tinued on a subsequent page. 

Now when a buyer or a lender, or his lawyer, desires a chain of 
title, let the searcher look at the Guide-map (which he will soon 
know by heart), turn to the block volume, turn to the page having 
the tax number, and in half an hour copy and verify the whole 
chain of title; then examine the names in the judgment dockets, and 
the work is done. 

In a new country like one of our Western States or Territories, or 
like New Zealand, where very lately the title to the land originated 
in a patent from the government, it is a comparatively easy matter 
for the deeds and mortgages and judgments to be very soon system- 
atically arranged so that the government itself, for a small fee, can 
promptly issue a certificate of all deeds, &c., affecting the title to 
a lot; and not only that, but as the title so recently came from the 
government, and such few and simple rights have intervened, the 
government itself can also guarantee the title, so that the chain of title 
can be kept on tlie page of a ledger, and guaranteed certificates can 
be issued to the owners, who can sell or mortgage the property by 
simple transfer of the certificates, as in the case of a warehouse 
receipt, from hand to hand, a new certificate being obtained from the 
Land Office for a small fee. ^ But it is not practicable to apply this 
guarantee in this way in this old city; for in the many transfers that 
have taken place there have crept in rights of aliens and of infants, 
and of lunatics, and disputes over wills, and varieties of other claims 
which would make it unsafe for the city to pledge its credit and 
its property and to risk guaranteeing all the titles of all the 



14 REAL ESTA.TE CONTRACTS, 

houses and lots in its limits, especially as the safety of its guarantee 
would depend on the correctness of examinations which would be 
made by lawyers who would necessarily be politicians, unused to 
the studious ways and sedate habits and careful, thoughtful 
methods of counsel accustomed to examining titles. Besides, many 
titles are in dispute and the city could not guarantee them, nor 
could any law be constitutionally passed which should injure the 
vested rights of many claimants by attempting to take away or an- 
nul their claims, no matter how convenient it might be to the gen- 
eral public. 

Any systematized effort to remove the trammels which now im- 
pede the transfer of real property must depend upon the accuracy 
and conscientious fidelity with which details are carried out, for the 
confidence it would deserve and receive at the hands of the public. 
The practical difficulties are great and can only be overcome by 
scrupulous performance of duty on the part of those intrusted with 
the execution of details. The utmost care would have to be exercised in 
the selection of those who abstracted from the records and of those 
who verified the work. No principle but that of competence and 
fidelity could prevail in the selection of the workers without dis- 
aster coming upon the result of their labor. 

The practical way to carry out such a system is to create special 
corporations as trust companies, with sufficient capital, with power 
to guarantee the titles to real estate, and with the right to make all 
searches and copies of records, abstracts, indices, maps, &c., that 
they may need for such purposes. This renders possible the exis- 
tence of combinations of experienced men, of the highest reputation 
for character and ability, who will by great labor and expense and 
by the employment of systematic methods do the work once and for 
all, and preserve the result of this work in available form for future 
use. 

It is obvious that such companies would, for their own protection, 
take the utmost pains to secure the services of those who have had 
the greatest experience and who have shown the highest degree of 
skill in the successful conduct of similar work. The labor to be 
performed is immense, and it requires legal knowledge and ability 
of the highest order. The most perfect system and the most 
thorough accuracy and reliability in every detail are absolutely 
essential. If such a task should be managed as a political job it 
could only result m a colossal failure and make matters much worse 
than they are now. 

Companies of the character alluded to are in successful operation 
in Baltimore, Boston, Washington, Louisville and Philadelphia. 

The labor which here requires weeks is, in these other cities, the 
work of hours. The prices charged are uniform and moderate. 

The guarantees of such companies protect purchasers of property 
and mortgagees against risks which, though remote, always attend 
real estate transactions. The most experienced lawyer may err, 



RKAL ESTATE CONTRACTS. 15 

especially where the law is undetermined, and fraud as an element 
of danger increases with the growth of the city, though the nature 
of such a company's work should render the perpetration of suc- 
cessful fraud more difficult than at present. When a purchaser 
loses by reason of error in an official certificate of search, suit 
against the official leads to uncertain expense and vexation. A 
company guaranteeing its searches should and would pay such 
losses on notice given, be subrogated to the rights of the insured, 
and conduct litigation in his stead. 

With a guarantee policy of corporation of sufficient capital, whose 
directors and stockholders should be the best lawyers and most con- 
servative business men in this city, the owner of a piece of property 
here could in a day turn it into money or obtain in the same time a 
loan upon it on bond and mortgage, or get money from his bank 
upon his own note without an indorser, with his mortgage and 
guarantee policy as collateral, and real estate would be relieved 
from the larger part of the burden of expense and delay which now 
trammel its free use as capital. 

The proper corporation to do this in New York city is our new 
Real Estate Exchange. 

Title S^fcrm Two Hundred Years Ago. — Andrew Yarranton, 
a shrewd Englishman, published over two hundred years ago a 
book with the following extensive title ; * ' England's Improvement 
by Sea and Land: To Outdo the Dutch without Fighting; To Pay 
Debts without Moneys; To Set at Work the Poor of England with 
the Growth of Our Own Lands; To prevent Unnecessary Law Suits 
with the Benefits of a Voluntary Register; Directions where Vast 
Quantities of Timber are to be had for the Building of Ships; With 
the Advantage of Making the Great Rivers of England Navigable; 
Rules to prevent Fires in London and other Great Cities; With 
Directions how the several Companies of Handicraftsmen in Lon- 
don may have Cheap Meat and Drink. By Andrew Yarranton, 
Gent., London; Printed for the Author, byJRoger L'Estrange, 1677." 

Andrew had been sent abroad by eleven private gentlemen, who 
paid from their own pockets his expenses and those of an inter- 
preter, that he might study and report upon all trades, manufac- 
tures and improvements which he should deem it advantageous to 
introduce into England. This book was written on his return. 
The following extract gives his views on the subject of Land Title 
Reform. 

"Now, I will demonstrate to all men unbiassed the truth of 
what I assert, and show them the condition the gentlemen and 
people of England are in at this day, and also the condition the 
Dutch are in at this day, in all their provinces. Let a gentleman 
now in England, that hath a thousand pounds a year in land, that 
owes four thousand pounds, come to a money scrivener and desire 
four thousand pounds to be lent on all his land, and produce his 
writings, and the estate hath been in the family two hundred years. 



16 EEAL ESTATE CONTRACTS. 

I know at this day the answer will he, that by the law of England, 
as it is now practiced, no man can know a title by writings, there 
being so many ways to encumber land privately. And therefore, 
the answer commonly is, ' Bring us security for the covenants, and 
we will lend you the moneys.' The gentleman gets such friends as 
he can procure to be bound for his covenants, whom, if they accept, 
then the procurator and continuator have their game to play ; but 
if he bring not such security as they like, he goeth without liis four 
thousand pounds, which is a sad and lamentable case, he having 
lands worth a thousand pounds a year; and now he is put to his 
shifts, his creditors come upon him, the charge of law-suits comes 
on, all his affairs are distracted, his sons and daughters want money 
to set them into the world. At last it is possible he gets two 
thousand pounds a piece of two several persons, of one at York, and 
of the other at London, and mortgages all his lands to each man. 
This continues private for some years ; the while the gentleman 
strives what he can to be honest, and prepare moneys to pay off one 
of the mortgages. 

But it commonly falls out otherwise, either through 'bad times' or 
decay to tenants, great taxes, or the eldest son matching contrary 
to his father's will, or oftentimes it is worse — he is so debauched no 
one will match with him. Now the gentleman's miseries comes on, 
and what must he then do ? For the persons that have the land 
mortgaged will not stay, because by this time it is discovered the 
land is twice mortgaged. I tell you, the lawyers' harvest is now 
come on, and the estate torn to pieces, and the gentleman, his wife 
and family, and, it may be, creditors, too, undone. For seeing all 
is in danger to be gone, the friends of the wife trump up a former 
title to the two mortgages, and fence to get all the estate that 
sheriff,- ■ bayliffs, solicitors and lawyers leave, to be to the uses 
intended or pretended in the private settlement. But you will ask 
me what the poor gentleman shall do to secure his person? I will 
tell you what some have done, and many more, I know, must do, — 
even turn over either to the Fleet or Bench. O pity and sin that it 
should be so in brave England ! First, pity that a poor gentleman 
cannot have moneys at such interest upon his lands as the law 
directs, to pay his just debts, and for the good and comfort of his 
family. Secondly, it is a sin that a gentleman of a thousand 
pounds a-year should be the occasion of ruining so many families, 
as he does, by putting them to such vexatious suits for their moneys 
lent, and it may be at last lose alL" 

**In this posture, as you see, are many poor men in England, 
which cannot borrow four thousand pounds of a thousand pounds 
a-year land. I pray let us [see what posture a Dutchman stands 
in, that hath one hundred pounds a year, and wants four thousand 
pounds." 

** Now, I am a Dutchman, and I have one hundred pounds a year 
in the province of West Friezland, near Groningen, and I come to 



REAL ESTATE CONTRACTS. 17 

the bank at Amsterdam, and there tender a particular of my lands, 
and how tenanted, being one hundred j)ounds a year in West Friez- 
Jand, and desire them to lend me four thousand pounds, and I will 
mortgage my land for it. The answer will be, I will send by the 
post to the register of Groningen your particular, and at the return 
of the post you shall have your answer. The register of Groningen 
sends answer, it is my land and tenanted according to the particu- 
lar. There is no more words, but tell out your moneys." 

' ' Observe, all you that read this, and tell to your children this 
strange thing, that paper in Holland is equal with moneys in Eng- 
land. I refuse the moneys, I tell him I do not want moneys, I 
want credit, and having one son at Venice, one at Noremburg, one 
at Hamburg and one at Dantzick, where banks are, I desire four 
tickets of credit, each of them for a thousand pounds, with letters 
of advice directed to each of my sons, which is immediately done, 
and I mortgage my lands at three in the hundred. Reader, I pray 
observe, that every acre of land in the seven provinces trades all 
the world over, and it is as good as ready money ; but in England 
a poor gentleman cannot take up four thousand pounds upon his 
land at six in the hundred interest, although he would mortgage a 
thousand pounds a year for it. No , and many gentlemen at this 
day, of five hundred pounds a year in land, cannot have credit to 
live at a twelve-penny ordinary. If this be so, it is very clear and 
evident that a man with one hundred pounds a year in Holland, 
so convenienced as their titles are, and at the paying but three in 
the hundred interest for the moneys lent, may sooner raise three 
families, than a gentleman in England can raise one or preserve 
the family in being, for the reasons already given." 

Our New York system seems to be the child of the Holland 
system of our Dutch ancestors ; but it has grown to such dimen- 
sions here that it must be reformed again. 

But at present, and until the recommendations that may be made 
by the lately appointed able Land Transfer Commission shall be en- 
acted into laws, we must take facts as we find them : many houses 
and lots will be bought and sold and loaned upon before the reform 
comes, and in the meantime you want; to know what to do now. 

Thirty Days Time. — In the first place, then, make the seller 
aUow you thirty days if possible, certainly twenty, before you are 
to take the deed. Though it has lately been decided by the 
Supreme Court in New York that a buyer who had contracted on 
June 23d to complete his purchase on July 1st, and who on the 
latter day requested an adjournment because he had been unable 
to procure a search of the title to the property, which adjournment 
was refused by the seller, was entitled to a reasonable extension of 
time, where the only damage to the seller was loss of interest ; and 
in this case the seller was ordered to give a deed (specific perform- 
ance was decreed), the buyer having obtained a search and offered 
to pay the money in the latter part of July. 



18 REAL ESTATE C0NTR£.3TS. 

Seller to Furnish. Abstract. — In the next place see that it is 
written in the contract that the seller will furnish you with an 
abstract of title and official searches, or copies of accessible official 
searches, down to a certain date — usually the date when he bought 
it, or, if he put a mortgage on it since, then to the date of such 
mortgage. This will save your lawyer considerable labor, and he 
will not have to charge you so much for the examination ; the 
labor of digging out a chain of title without any former abstract to 
serve as a guide or clue, is indeed very great. In England the rule 
is that the seller's lawyer prepares the abstract at the former's 
expense, and the purchaser's lawyer examines the abstract, with 
the deeds, at the purchaser's expense ; but that is not the rule here, 
and although it is customary and usual for the seller to hand over 
his abstract of title and other papers to you, you can't make him 
do so, unless it is written in your contract. If he agrees to do it, 
and fails, then you can make him foot the bill. 

I said that you will have it written in your contract that you 
shall receive such an abstract. 

Th.e Contract must be Written. — You know of course, that to 
be binding, a bargain for the purchase or sale of real estate must be 
in writing signed by the parties to be bound. Printing is writing. 
So your contract may be partly a printed form, and partly written. 

There are cases, however, in which the contract for the sale and 
purchase of real estate need not be in writing; I refer to those cases 
where the contract is already executed on one side; for instance, if 
you agree to give me a deed of a certain house for five thousand 
dollars, and I go into possession of the house, you can make me pay 
you the money. But a grave drawback to an oral executed contract 
is, that terms and conditions that are desirable are not thought of 
at the time of making it (and you cannot make them up and put 
them in afterwards). 

But you are going to have a written contract. 

"What a Contract is. — A letter in terms repudiating liability, but 
admitting the making of the contract, the letter being signed by 
the party to be charged, has been received as a sufficient memor- 
andum in writing. And the terms of the bargain may be gathered 
from two or more separate papers if the signed contract contains 
such reference to the other papers as to make them part of the former; 
but they must be mentioned in the contract; the connection between 
unsigned papers and the contract cannot be made by parol evidence 
that they were intended to be read together or by evidence of facts 
and circumstances from which such intention may be inferred. It 
may be stated generally that the contract must state expressly the 
subject of sale, the terms, and the parties, with such certainty as 
to furnish evidence of a complete agreement. 

Contract by Letter. — The contract might be the result of cor- 
respondence by letters. If I write to you that I will sell you my 
land on certain terms and you send me another letter accepting the 



REAL ESTATE COXTRACTS. Ill 

terms proposed the contract is complete the moment that you put 
your letter to me in the posfcoffice. So it would be if the letters 
were written by our duly authorized agents. These letters must be 
definite; if I had simply written to you asking if you are the owner 
of certain real estate and what your price is, and you answer that 
you are the owner and state the price at which you hold it, that 
would not be an offer on your part to sell it to me; I could not 
clinch it by writing back to you that I take the land at your price. 

And if some one has made you an offer through his agent to buy 
your land, and you write to the agent accepting the offer and do not 
in your letter request him to have your acceptance delivered to his 
principal, unless you can prove that the latter had knowledge of it, 
the agent's letter and yours together would not make a contract. V. 
Date. — To begin with, you will date your contract. But if from 
oversight the date of the agreement should be left out, that will not 
invalidate it, it will take effect from the date of its actual delivery. 
Escrow. — Sometimes, however, the buyer determines to buy, and 
the contract is signed, at a time when the buyer has no money 
about him, and thereupon for that or for some other good reason the 
contract is left "in escrow," as it is termed, that is, in the hands of 
some trusted third party to be delivered on the payment into his 
hands within a certain time of a certain amount of money, or on 
the doing cf some certain act agreed upon. And as th^ contract 
will not take effect until its delivery, it is better to have it dated. 

Cancellation of Contract. — A contract can be extinguished, by 
agreement of both parties, by simply tearing it up. 

It does not need a written cancellation or agreement that it be 
deemed cancelled, nor need the wife of a buyer join in or sign a 
cancellation of a contract. <^ 

J A wife has no dower in a contract for the purchase of land. 
Cancellationof Deed.— But this is not the case if a deed has been 
executed and delivered, although it has never been recorded ; the 
right of dower of the wife of the grantee at once attaches to the 
land in that case, whether she knows anything about it or not; 
neither can the title of the buyer, if a single man, be extinguished 
by simply tearing up the deed, even with the consent of the seller; 
the title to lana can only be conveyed or given up by a deed duly 
signed and execured. and a grave mistake is often made in the 
utmost good faith by attempting to end the matter by just destroy- 
ing the deed. '^' 

J Parties. — Seldom doe? any question arise as to the parties to such 
a eontract. Of course an :'viif ant under twenty-one can not sell land 
without a guardian appointed for that purpose by the court, and an 
order of the court that sucir -and be sold for the infant's benefit; nor 
can a seller rely upon a young man of twenty say, as a buyer, even 
if he pay his money and take his deed, for he may repudiate his 
bargain any time before he is twenty-two, and deed the iand oacJs. 
and get his money. Of course a corporatioiL car sell ^and mar ax 



W KEAL ESTATE CONTEACT&. 

owns; the general view is that a corporation can not give a full 
covenant warrantee deed, but only a deed of bargain and sale, or a 
quit-claim, on the ground that the covenants of warranty would be 
ultra vires (or beyond the powers of the corporation): but my own 
view is opposed to this, and if the corporation will give you such a 
deed, you take it; the only risk you run is that some time in the 
future, if you should have trouble with your title, say your quiet 
enjoyment interfered with, or some deed of further assurance be 
required, the corporation may have ceased to exist and you would 
have no one to enforce your claim against; but you would be no 
worse off then than if you had a simple deed of bargain and sale, 
•without any covenants. 

Referees appointed by the court, or Sheriffs, in foreclosure or 
partition suits, are very often the sellers of property, and the par- 
ties of the first part in contracts. In such cases the terms of sale 
are usually embodied in the decree or judgment that appoints the 
referee; but if you are going to buy a piece of property at such a sale 
you ought to go, or rather send your lawyer, beforehand and exam- 
ine the decree, and the terms of sale that the referee intends to use, 
for you will not be able to understand them when they are read in 
the babel of the real estate exchange or auction room, at the sale. 

Referee to see that taxes are paid.— The referee, or Sheriff, is 
personally bound by law to see that all taxes and assessments, liens 
on such property, are paid from the proceeds of the sale; if he 
overlooks it you can mase him pay them out of his own pocket. 

Competent Parties. — There must be competent existing parties, 
but they need not be expressly named, though where there is noth- 
ing in the contract itself nor in the nature of the transaction which 
shows who are the parties, such a contract would be void for uncer- 
tainty ; though it is not necessary in every case that the party to 
whom the deed is to be made should be distinctly ascertained at the 
time of the contract ; for example a contract might be made to 
convey land to a corporation not yet formed, which would not be 
void for want of a grantee, if a good consideration were paid for 
the contract, as the corporation might be formed and be in existence 
before the date of the delivery of the deed ; and the heirs of a 
vendor, even though they should be infants, and although not 
named in the contract, may be made to fulfil the contract to the 
extent of the estate that descends to them ; in one case, where the 
seller died before delivery of the deed and left a lunatic child as his 
heir at law the court directed the committee of that lunatic child to 
execute the necessary conveyance. 

Assignee of Contract. — The contract may be assigned. The 
assignee can stand in no better position than the original vendee, 
and takes it subject to all equitable rights, between his assignor and 
the other party to the contract, bound by any understanding or 
bargain outside of, or in addition to the contract ; but the assignee 
of the buyer under such a contract is not personally bound to pay 



REAL ESTATE CONTBACTS. 21 

the balance of the purchase money that may be due; unless he 
makes an express agreement so to do, cr unless such an agreement 
on his part can be implied, the seller cannot sue him for such balance 
of the purchase money. 

Oral Authority to Agent. — An oral authority to an agent to 
make a contract relative to the sale of lands would be good, and 
not within the statute of frauds ; but the execution of a deed by an 
agent would not be good unless authorized by a power of attorney 
under seal (you could tell another man to sign your name right in 
your presence and that would be a good signature by you). 

Auctioneer. — A mere oral authority is all that an auctioneer 
needs to sell lands, but not to make a deed of them. As soon as a 
sale is perfected the auctioneer's agency ceases. A sale by him (at 
auction, of course), is within the statute of frauds and requires a 
memorandum of it in writmg m order to bind both parties, but this 
memorandum made and signed by the auctioneer is sufficient ; he 
acts as the agent of the buyer as well as tliat of the seller ; but he 
must make that memorandum and sign it at the time of the sale, 
and before those proceedings are terminated, or the purchaser will 
not be bound. 

By-bidding. — The employment of puffers or by-bidders to run up 
the property by sham bids is against public policy and avoids an 
auction sale ; a buyer at such a sale may be delivered from his 
purchase. But some courts have held that if persons were employed 
to bid up to a certain sum in order to avoid a sacrifice of the prop- 
erty, and then the price was afterwards raised by real bidders, the 
sale will be sustained ; and out in Texas, merely for a person to bid 
in for the owner does not necessarily vitiate an auction sale, so long 
as he does not intend to raise the price beyond a fair value ; and it 
has been decided there that whether the by-bidders were employed 
in good faith to prevent a sacrifice, or simply to raise the price by a 
pretended competition, is a question for the jury to pass upon in 
each case. 

Lunatic Party. — If you should unfortunately be drawn into 
making a contract with a lunatic of course you cannot hold him to 
it, but mere weakness of understanding on his part would not 
invalidate it, so long as he has memory and judgment to a moder- 
ate extent and no fraud is shown ; it is useless to get a man to 
make a contract while he is intoxicated and thereby deprived of 
his reason, because he can have it set aside. 

Signature by Agent. — The proper way for an agent to 
sign a contract on behalf of his principal is of course, "the princi- 
pal by the agent," "John Smith, by Wm. Jones, agent ;" still 
should it be signed ""Wm. Jones for John Smith" that would bind 
the principal, provided the contract on its face purported to be 
made by the principal ; and where the agency is disclosed and the 
contract is within the agent's authority, the latter will not be per- 
sonally bound, unless upon clear and explicit evidence of an inten- 



22 REAL ESTATE CONTRACTS. 

tion SO to bind him ; if an agent who had no authority should 
Tibk signing a contract on behalf of a principal, the former would 
"be personally bound to cany out the contract ; this rule, how- 
ever, does not extend to a purchase at auction where the auc- 
tioneer, carrying out his duty as such, signs the memorandum 
-of the sale and purchase as the agent of the buyer, as well as 
of the seller. 

Signature by Trustee. — If a seller who is a trustee for others 
should be described in a contract simply as *' Trustee "or " Trustee, 
etc.," without stating for whom, he would be personally liable ; so 
take care to put in the whole of your title as trustee : this is a pre- 
caution often neglected, generally from laziness, because it is too 
much trouble to look up the exact words of description of your 
position or legal name, the seller not being quite certain whether he 
is " executor of the estate of James Henderson, deceased," or 
" trustee under the last will and testament of James Henderson, 
deceased," or what. 

Signature by Trustee of a Ccrporation. — But it will not do to 
make a contract on behalf of a corporation and then sign it with 
your name as trustee of such corporation, you would then be per- 
sonally liable ; it must be signed with the name of the corporation 
by So and So, trustee, or director, or president ; if you sign it in 
the preceding way, as we have stated before, you will be personally 
liable. 

Of course a person merely named in a written agreement is not 
liable if he has not signed it, unless there be other evidence of his 
promise. 

Pretended Owner. — If you contract to purchase from a person 
who turns out to be only a pretended owner, you can not be com- 
pelled to take your title from some one else, a third Derson, the 
real owner. 

Assumed Agency — Bond and Mortgage. — If you sell to a pur- 
chaser under a contract in which he agrees to assume and pay a 
mortgage on the premises as part of the consideration, or if he 
agrees to give a purchase money mortgage for the same, and then 
you give him a deed in which he assumes t*he existing mortgage, or 
upon the delivery of which he gives you his own purchase money 
bond and mortgage, in pursuance of that contract, and you after- 
wards find that he was acting for some one else, some rich man, 
his undisclosed principal, it will be of no use for you to sue tlaia 
third party on the covenants in that contract, should the one to 
whom you gave the deed afterwards fail to pay the mortgage. «. 
1 Husband to join. — A married woman in New York can contract 
to sell her land, or can buy, without the consent of her husband ; 
but I doubt very much whether estate by the curtesy has been 
abolished ; I think that to accomplish that would require an express 
statute, and that it has not been destroyed by implication any more 
than an estate by the entirety has, by the Married "Women's Acts ; 



REAL ESTATE CONTRACTS. 23 

and I should require a husband to join in the deed of his wife's 
land to release his right by the curtesy, just the same as I would 
require the wife to join in a deed of her husband to release her 
right of dower. 

Curtesy. — Right by the curtesy is the common law right of a 
husband to take possession of all his wife's land should she die 
first, and receive and spend all the rents for his own benefit during 
his lifetime, provided they ever had a child horn to them alive (no 
matter whether it continued to live or not). 

Dower. — Eight of dower is the right of the wife to one-third of 
the rents of the husband's houses and lands or to have one-third of 
his houses and lands set apart for her use, so long as she lives, after 
he is dead, no matter whether they ever had any children or not. 
It is curious how many well-informed people think that a widow's 
dower is t'le absolute ownership of one-third of her husband's real 
estate, with the right to sell it, or to do as she has a mind to with 
it ; whereas her right is only a life estate, so long as she shall live. 
However, it is but seldom that it is written in a contract that a 
wife shall sign the deed to release her right of dower, or a husband 
to release his right by the curtesy; because the contract usually pro- 
vides that a deed shall be given free from all incumbrances, and the 
wife must join in order to comply with that. In view of the differ- 
ences of opinion about the state of the law as to curtesy, I should 
say, require the careful insertion in the contract, where a married 
woman is the seller, of an agreement on her part that her husband 
shall join in the deed to bar his right by the curtesy, and if she would 
not agree to that, especially if because she could not control him, 
it would then be a grave cause for the buyer refusing to make the 
contract. 

Consideration. — The question as to what is a good consideration 
for a contract is too large to be gone into here. An agreement for 
the sale of land requires a good and valid consideration, the same 
as any other contract ; for example, if you agree to give the refusal 
of your house and lot to another party, but the latter does not 
agree to take the house and lot, and there is no promise on his part, 
nor no money or other valuable thing given, the whole agreement 
would be void for want of consideration ; of course you could not 
hold him, but also he could not hold you. Marriage is a good con- 
sideration ; so that if you promise a lady that you will give her 
your Murray Hill residence if she will marry you, and she accepts 
and carries out her part of the bargain, you can be made to keep 
your part of it. 

But a contract to convey real estate in consideration of love and 
affection, as to a son or other relative, cannot be enforced, although 
if a deed be actually delivered for such a reason that would be a 
vaUd consideration to uphold the conveyance, unless the latter has 
been made to defraud creditors. 



24 EEAL ESTATE CONTRACTS. 

As to tiie consideration for the agreement to sell and purchase a 
piece of property, contracts usually are in one of two forms : 

In one, the consideration {for the contract^ mind) is directly 
expressed and paid at the time of delivery of the contract, thus 
•' the said party of the first part " (the seller), "for and in consid- 
eration of the sum of (say) five hundred dollars to him in hand 
paid, has contracted and agreed to sell" to the buyer a certain 
piece of property for (say) ten thousand dollars. Here the consid- 
eration for the contract is five hundred dollars, and the consider- 
ation to be paid for tlie property ten thousand dollars. It is usual 
under this form of contract, however, when it comes to specifying 
how the consideration for the land (the ten thousand dollar?) shall 
be paid, to provide •' payable as follows : The sum of five hundred 
dollars paid as aforesaid at the time of the delivery of this agree- 
ment to be allowed thereon ; the sum of (say) forty-five hundred 
dollars upon the delivery of the deed, and the balance (say) five 
thousand dollars in a purchase money mortgage, etc. ;" so that the 
said five hundred dollars expressed as the consideration of the 
contract ultimately becomes a part of the consideration for th 
property. This form is inaccurate and illogical. 
' The other way is to regard the mutual covenants, that of the 
seller to give deed, and of the buyer to pay, as the mutual consid- 
erations which support the contract. This is correct both in fact 
and in principle. This form is worded thus: "The party of the 
first part, in consideration of the sum of ten thousand dollars, to 
be fully paid as hereinafter mentioned, hereby agrees to sell unto the 
party of the second part" such a piece of property; "and the 
said party of the second part hereby agrees to purchase said 
premises at the said consideration of ten thousand dollars, and to 
pay the same as follows : five thousand dollars on the delivery of 
the deed, and five thousand dollars in a purchase money bond and 
mortgage, etc." 

In some states, for example New York and New Hampshire, the 
courts require the consideration to be expressed in writing as part 
of the agreement, while in others, for instance Massachusetts and 
Missouri, it is enough if the agreement be in writing though the 
consideration be not expressed. At law, as we have said before, a 
parol contract for the sale of land is void notwithstanding possession 
and improvements by the purchaser; but it has long been the settled 
doctrine in equity that such a contract will, if executed by the party 
seeking relief, as for example if he has made fuU payment, be 
specifically enforced; only partial payment of the purchase money 
is not of itself usually regarded as a sufficient part performance to 
take the contract out of the statute. 

Description — We must now consider the description of the prem- 
ises in your contract. 

This cannot be too clear and accurate. This is a part very apt 
to be slighted, usually because the printed blanks do not leave 



REAL ESTi-TE CONTRACTS* 2h 

room enough to write all that ought to be written; if it be only 
a city lot of four sides tha^ is to be conveyed, it needs but little 
space ; but if a farm, with many courses, and various rights 
of way or easements, or a house or factory, with movable 
fixtures to be enumerated, remember that the deed must 
follow the oontract, and that if you begin to enumerate 
and describe everything, whatever you omit will not go with 
the rest as a matter of course; therefore, take more care with 
the deocription. It is not essential that the description of a 
property should have such particular identification as to render it 
entirely needless to call in outside evidence to determine what 
property was contracted to be sold, but the terms must be sufficient 
to comprehend it, so that with the assistance of outside evidence^ 
the description without being contradicted or added to can be con- 
nected with and applied to the very property intended to the 
exclusion cf all other property. 

What "Land" Means. — The word land is broad in its meaning 
and includes growing grass and standing trees. A contract for the 
sale of standing timber is therefore a contract for the sale of an 
interest in land, and must be written ; so is one for the sale of 
growing crops ; but if the standing trees are sold with the intention 
of their being immediately cut down, this contract need not be in 
writing ; and the same has been held with regard to a crop of 
peaches, the buyer to gather and remove the peaches as they ripen ; 
so may hops upon the vine, and hop roots be sold without a written 
contract, although at the time the bargain was made the roots were 
in the ground. But in England the sale of a right to shoot ove. 
land, and to take away part of the game killed, comes within the 
statute of frauds, and must be in writing ; and so must a salo of 
coal and the right to take coal ; and a permission to flow land wi-th 
water as for a mill pond ; and the same has been held in respect to 
mining claims ; but the sale of shares in a mining company is not a 
sale of land or of an interest in land. A contract for the sale of 
improvements on land, such as houses, has been held in some 
states to be a sale of personal property, and not within the statut-e. 
Pointing out Boundaries. — Where the seller undertakes to 
point out to the buyer the boundaries of a piece of land he does so 
at his peril. 

Allowance for Deficiency in duantity. — But if the buyer can 
obtain substantially what he bargained for, and the value of any 
deficiency can be reasonably ascertained, he can be forced to take 
title ; the general rule is that he shall have what the seller could 
give with a deduction for the quantity that the land falls short. 
And if the title to part of the premises fails, the buyer may claim 
performance as to the remainder with a deduction for the defi- 
ciency ; but if the term " more or less " is used and there should be 
but a small variation in the dimensions or quantity, no change in 
the consideration can be claimed by either party ; while if the vari- 



26 REAL ESTATE CONTRACTS. 

ation is considerable, an equitable allowance should be made to the 
one entitled to it ; and if you pay part of the purchase money and 
give a mortgage for the balance, you will not be relieved against a 
mortgage on the mere ground of a defect of title, where there was 
no fraud in the sale, and you have not been turned out ; but you 
can get your remedy at law on the covenants in your deed. 

The real test as to the materiality of a deficiency in the quantity 
of land contracted to be conveyed is, would the buyer have entered 
into the contract if the error or falsity had been known. The buyer 
is not bound to know that the description of the premises in the 
contract does not include all the land that the seller represented it 
to contain, and any deceptive assertions and false representations 
made by the seller upon that point would justify an inference of 
fraud and enable the buyer to have the contract set aside. 

Description. — A broker may give you a diagram which specifies 
supposed dimensions of the property, besides designating it by 
street and number, but if he had no authority from the seller to 
give the dimensions and you should afterwards take a contract 
which described the premises only by the street and number, with- 
out any dimensions (as contracts often do) you will be bound to 
tike the deed of the property as it stands, in accordance with 
the contract, and cannot claim the dimensions given you by the 
broker. 

A question that quite often arises is whether a purchaser will be 
bound to complete his contract if he finds somewhere in the chain 
of title an error like this, * ' beginning at a certain point and run- 
ning southeasterly " when it ought to say ** southwesterly," which 
of course would locate the prox)erty in an entirely different place 
from the one intended by the buyer ; but this is always to be 
decided by reading the entire description as a whole, and if the 
intention to convey the premises in question is apparent the pur- 
chaser will not be relieved. 

He would be, however, where he had taken a contract for a store 
and premises which had been offered to him by the seller as they 
appeared with water pipes and gas pipes and gas fixtures in them, 
and then the pipes and fixtures should be removed afterwards, 
although they were taken away by a tenant who had the right to 
do so, and the seller when he made his contract did not know that 
his tenant had any such right. 

Buyer must Agree to Buy. — Another odd thing that often hap- 
pens when a contract is drawn without the aid of an experienced 
lawyer or real estate broker is that while it is carefully written that 
the seller agrees to sell, and so he is bound, it is often forgotten, or 
taken as a matter of course, and omitted to state expressly and 
separately that the buyer agrees to buy and to pay for, and to pay 
on the special terms agreed on, so that frequently contracts are 
seen where the buyer is not bound. This is a one-sided sort of 
contract, not always to be safely indulged in by the seller. 



REAL ESTATE CONTRACTS. 27 

An apt commentary upon these views is the opinion of Judge 
O'Gorman, of the New York Superior Court, in the suit of Isaac E. 
Wright against Herman Mischo, decided March 12, 1885, since the 
manuscript of the foregoing was written. This was a motion on 
the part of plaintiff for a new trial on the minutes, the complaint 
having been dismissed at the close of the case on the trial, all the 
evidence on both sides having been received. 

O'GORMAN, J.— The action is brought for the recovery of $4,000, as dama- 
ges resulting from the breach by the defendant of a contract alleged to have 
been made by him in March, 1883, to pm'chase from the plaintiff certain real 
propert}^ in this city. The burden of proving this contract by a prepondei'- 
ance of evidence was on the plaintiff. 

The plaintiff testified that, after some preliminary negotiation between 
him and the defendant, an interview took place on or about March 31, 1883, 
at the store of defendant, who dealt in fm^s. 

Defendant said he would give plaintiff for the property $34,000, and $500 
in furs, to which the plaintiff answered " The property isyom's." Defendant 
said, "I want to know that for sure, because if I don't get this propery I 
want other property I am looking at." Plaintiff said, "It is yoiirs. I 
will draw you a contract, a receipt, and you pay me some money." He 
(defendant) says, " Vei'y well, I have not much money in the safe." I said, 
^'AU right, $50 will do." 

" Defendant then instructed his bookkeeper to give me (plaintiff) fifty 
dollars and to draw a receipt. The bookkeeper commenced drawing the 
receipt and turned to me (plaintiff) and said, ' Mr. Wright, you know more 
about this property than I do; you know the location of it; you better draw 
the receipt yourself;' then I took the pen and drew a receipt." 

This document was thereupon signed by the plaintiff and left with the de- 
fendant, and plaintiff received the fifty dollars in bills. It was not produced 
at the trial by the defendant, who stated that it was lost, and plaintiff testi- 
fied as to its contents, using, to refresh his memory, a copy which he made 
of the document a few days after it had been signed by him. 

The following is a copy: 

" New York, Mar 21, 1883. Received from Herman Mischo the sum of $50 on 
accomit of purchase of property known as 411 and 413 East One Hundred and 
Fifteenth street for the sum of $34,500, as follows: Subject to $16,000 now a lien on 
said property, $8,000 in cash and $500 in furs. Tbe property to be free and clear of 
All encumberances, except as above mentioned. Deed to ^be given on the 2d of 
April. 1883." 

This paper, as plaintiff testified, was read over to the defendant. This, 
however, defendant denies. Plaintiff continuing his testimony further says: 

" I was to have a contract drawn next morning, and Mr. Mischo was to 
<;all at my office and pay $950 additional. I read the contract over to him. 
He says: 'Mr. Wright, they are apparently aU correct; I do not see anything 
there but what I agree to, but I have always done busings in such a way 
that I never sign any papers without my attorney seeing them.' I said to 
him: 'I want the money to-day,' He said: 'You sign this contract and leave 
it here with Mr. Kmapp (plaintiff's clerk), and before three o'clock, if my 
attorney does not come from Brooklyn, I will show it to another attorney 
and be here in time for banking hours with the check for $950.^ The con- 
tract was thereupon signed by plaintiff and left with the clerk. 

Defendant did not return that day, and wrote a letter to plaintiff declin- 
ing to proceed further in the transaction. This letter was answered on the 
part of the plaintiff, stating that defendant had bought the property and 
held plaintiff's receipt which debarred plaintiff from selling it to anyone else, 
whereupon defendant again wrote to plaintiff inclosing plaintiff's signature 
which had been cut from the receipt. Plaintiff thereupon took steps to sell 
the property by private sale, and, failing in that, sold it at auction on May 
13, 1883, for $30,500, $4,000 less than the price at which he claims that it was 
purchased from him by defendant. Plaintiff testified that the market value 
of the property in April, 1883, was about $30,500 or $31,000. These are, I 
think, the material facts as testified to by the plaintiff. ; 

;The question to be considered is whether or no the transaction, as thus 
described by him, constituted a contract by the defendant to purchase the 
property and take a deed for it and pay for it, according to the terms as 
set forth in the receipt drawn up by the plaintiff and given by him to 



28 REAL ESTATE CONTRACTS. 

defendant. Did the delivery by plaintiff to the defendant of the receipt^ 
and its acceptance by the defendant, coupled with the delivery by the 
defendant to the plaintiff of fifty dollars, as stated by the plaintiff, con- 
sidered in the light of all the attendant circumstances, constitute, or supply 
sufficient evidence of a contract on the part of defendant to purchase the 
plaintiff's property, under the provision of the Statute of Frauds as now in 
force in this State ? The section of the act bearing on this subject is as 
follows: 

" Every contract for the leasing for a larger period than one yeai', or for 
the sale of any lands, shall be void, unless the contract or some note or 
memorandum thereof expressing the consideration be in writing and be 
subscribed by the party by whom the lease or sale is to be made." 

This receipt sets forth, I think, with safficient accuracy the description 
of the property, the price and the terms of sale, to constitute "a note or 
memorandum of sale " by the plaintiff, under that section. But that is not 
the question here. The question is, did the whole transaction constitute a 
contract on the part of the defendant to buy ? The section above set 
forth does not require that the contract to purchase land should be in writ- 
ing. But, nevertheless, a contract on the part of the purchaser is necessary 
to establish any obligation against him, and the burden is on the plaintiff to 
prove that such a contract was made. The plaintiff's claim here is that the 
acceptance by the defendant of the receipt drawn up by the plaintiff, and 
payment by the defendant of fifty dollars, constitute a contract on his 
part, or in evidence of a contract. 

From a dictum in the opinion of the Court of Appeals, in Cagger vs, 
Lansing (43 N. Y,, 553), it may be inferred that the Court held it to be 
law that the delivery by the vendor to the pui'chaser of a written con- 
tract for sale of land subscribed by the vendor alone, and its acceptance 
by the purchaser, would constitute a contract on the part of the latter 
to purchase, if it were accepted by him as a valid subsisting conti'act. 
But if not so accepted that it would not be binding on him. 

Did defendant here accept this receipt as "a valid subsisting contract" 
by the vendor to sell him this property ? The burden of proving that 
he did so accept it was on the plaintiff. The question can be answered 
only by considering the circumstances of the whole transaction in defend- 
ant's store, and also what occmred at the interview in plaintiff's office 
next day. 

The payment of money on account of a purchase of land is held not to 
be of itself evidence of a contract topurchase the land (Cagger %s. Lansing, 
supra. ; Baldwin vs. Palmer, 10 N. Y., 232). 

In Raubitchek vs. Blank (80 N. Y., 482), an action was brought for pay- 
ment of a check valid on its face. The defendant pleaded want of consid- 
eration, and the burden of proof was on him. It appeared that the check 
was given as pai't payment on a verbal agreement for the sale of land; 
that a receipt signed by the vendor was given to the pm-chaser, 
which receipt contained enough to constitute a note or memorandum 
imder the Statute of Frauds. It was held that the defendant f aUed to show 
that there was not good consideration for the check; that the receipt 
amounted to a contract of sale sufficient to satisfy the Statute of Frauds, 
and was binding on the vendor ; that the transaction bound the purchaser 
also, on the ground that the receipt and the check formed the one contract, 
the mutual relations of these several writings appearing on their face. 

This case has been referred to in the argument, but is not in point with 
the case at bar, for the burden of proof there was on the defendant to prove 
that no valid contract existed on the part of the vendor to sell the property, 
whereas, in the case at bar, the bm-den is on the plaintiff to prove that there 
was a valid contract on the part of the defendant to buy ; and it is worthy 
of note that only three members of the Com't of Appeals concurred in the 
decision in that case. 

The question then in the case at bar is whether there is evidence enough 
to go to the jury that defendant understood the receipt to be, or that it was 
intended by plaintiff to be, a valid and subsisting contract for the sale of 
the land, and that defendant accepted it as such. There is no evidence that 
he did so. r 

At the interview in his store, defendant directed his bookkeeper to draw 
a receipt. The bookkeeper requested plaintiff to draw the receipt himself. 
The document was in form a receipt, and in the interview and conversation 
between plaintiff and defendant it was called a receipt. The agreement 
then made between plaintiff and defendant that they were to execute a con- 



REAL ESTATE CONTRACTS. 29 

tract in counterpart the morning after that interview does not favor the 
conclusion that defendant understood that a valid and subsisting contract 
binding plaintiff had been made, or was intended to be made, by plaintiff, 
and that the defendant was bound as a purchaser by reason of the delivery 
to and acceptance by him of a contract. 

If defendant believed, and had reason to believe, that the paper then 
signed by plaintiff and deUvered to him was a receipt and nothing more, 
there was no vahd or binding contract between them. A strong prepon- 
derance of evidence is that he did so believe. 

I have considered this question so far by the light only of the evidence in 
its aspect most favorable to the plaintiff, and I find therein no proof of any 
valid contract on the part of the defendant to purchase this property. 

At the ti-ial of the action all evidence on both sides was received that was 
believed to be material and relevant to a full understanding of the whole 
transaction ; and, taking the evidence in the case altogether, I think that 
there is not only a failure of necessary proof by the plaintiff but a prepon- 
derance of evidence in favor of the defendant. 

His conduct may have been unbusiness-like, vacillating, and, on various 
grounds, open to serious objection, but I see no evidence in the case that 
would have wan-anted a jury in finding that he had violated a contract by 
reason of which plaintiff was entitled to claim damages against him. 

The motion for a new trial is denied, but without costs." 

Possession of Premises is Notice, — If the contract is recorded, 
and the buyer goes into possession of the premises, then any subse- 
quent purchaser or mortgagee would be deemed to have notice of 
the contract. And bear in mind that possession of property is 
always notice of a claim of ownership ; so that before you pay your 
money for a deed (or hand it over for a bond and mortgage), care- 
fully inquire of all persons, tenants or others, in possession of the 
property, who owns it, and how they hold possession. 

Possession of Wild Land. — Of course it is difficult to say what 
is actual possession of wild lands ; in one case a man was sued for 
having cut bark on wild land and he showed a receipt for money 
for which the owner had contracted to give a deed for the land, 
and the court held that this receipt was a contract for the sale of 
the land and that by cutting bark or timber from it the person who 
paid the money, having taken such possession of it as was possible, 
had become the equitable owner and could not be made to pay the 
value of the bark cut, although he had not paid the balance of the 
price, and the former owner had continued to pay the taxes on it. 
^ Possession. — The contract is not of itself permission to the buyer 
to go into possession, unless it expressly says so, and the buyer who 
enters and is turned out by force by the owner could not successfully 
sue the latter for trespass ; if, however, the land be vacant and the 
purchaser has paid the entire price and has done all that he agreed 
to, and all that remains for the seller to do is to give the deed, there 
is an implied agreement or license that the buyer may at once take 
possession and have the use of the land. 

If the buyer, however, before he examines the title takes posses- 
sion under the contract and makes improvements and it afterwards 
turns out that the seller is unable to convey, the former cannot 
recover the cost of the improvements if the latter contracted in good 
faith and has not refused to perform. 

Taxes.— Different views are often entertained by buyer and 



30 REAL ESTATE CONTRACTS. 

seller ab to which shall pay taxes ; for example, a contrsfcct might be 
signed early in September, the deed to be given in October, and in the 
meantime the tax levy be confirmed, say on September 23d ; then 
the buyer insists that the seller shall pay them, and vice versa; in 
this case the seller must pay. On the other hand, the contract 
might have been made August 23d, to be closed thirty days from 
date (September 22d). Here the buyer would receive all the pur- 
chase money, and the very next day the buyer's property would be 
liable for a whole year's taxes. These facts are usually, but not 
always borne in mind when the contract is made. To produce any 
different results any desired different arrangement must be dis- 
tinctly specified in the contract. 

' Party "Walls. — Of course it is of importanee to know if a house 
has a party wall on either side. While each adjoining owner has 
an easement in the land of the other upon which the Avail stands, 
such a wall is not an "encumbrance" under the covenant in a 
contract or deed against encumbrances ; but a sound party wall 
cannot be taken down except by mutual consent. Repairs to it 
m.ust be paid for by each owner ratably, but one party has not the 
right to make the other pay towards rebuilding it should it be 
totally destroyed as by fire. The right to such a wall continues so 
long as it is sufficient for the pmrpose and the adjoining buildings 
remain in condition to need it. Division fences must be main- 
tained, in New York at least, by the adjoining owners under State 
statutes and city and village ordinances. 

Title. — When you agree to sell land you impliedly agree to give 
a good and unencumbered title. Every purchaser has a general 
right to require such a title without its being written in the agree- 
ment ; and certainly where the seller contracts ** to give a deed 
free of all encumbrances," or "a good warrantee deed," or "a 
good and sufficient deed," unless the contract shows on its face 
that he has merely agreed to sell the title which he has, whether 
defective or not ; but this is only true of a contract, and as soon as 
that is consummated by the delivery of the deed the buyer must 
look out for himself and see that the deed contains express cove- 
nants. If the contract is merely to convey the land, that means a 
conveyance in fee. You cannot be compelled to pay your money 
and take a doubtful title or an. encumbered property. It would be 
a doubtful title if it were to expose you to a lawsuit, but you cannot 
reject it simply on a possibility of ixs proving to be imperfect. 
Where a husband has agreed to sell, the wife must sign the deed, 
although she may not have signed the ooni;ract, in order to give a 
good title. 

Deed. — You must take care what kind of a deed you agree in 
your contract to give, or agree to take. If it says that the seller is 
simply to give a deed, that is satisfied by his giMrLg one without 
warrantee or covenants. If the agreement is simply ix) give a deed 
in fee, that will not be satisfied by giving a title subject to 



REAL ESTATE CONTRACTS. 31' 

encumbrance. If the words "good and sufficient deed" are used, 
the seller is bound to convey a good title ; he must give a warranty 
against encumbrances, and must convey the legal estate in fee, 
free from all other claims or liens v. hatsoever ; the seller's wife 
must join in such a deed. If the contract says the " title to be 
satisfactory," that implies only that the title shall be good and 
marketable. The best way to put it is " a full covenant warrantee 
deed." 

Q,uib Claim Deed. — A quit claim deed does not give a very good 
title ; it simply conveys whatever right or title or interest the 
grantor may have in the property described, at the time that he 
signs and delivers the deed ; it would, however, take precedence of 
a prior unrecorded warrantee deed from the same grantor, if the 
purchaser under the quit claim has no notice of the prior deed and 
if there is nothing stated in the quit claim which suggests an 
earlier conveyance ; but a quit claim deed will not operate, as a 
warrantee deed does, to carry subsequently acquired title of the 
grantor ; if you take such a deed you can hardly be regarded as a 
bona fide purchaser without notice of outstanding titles and 
equities ; you obtain just such a title as the seller had, and the land 
in your hands would remain subject to all the equities attaching to 
it in the hands of the seller, though they may be unknown to you ; 
even in the absence of fraud by accepting such a deed you take the 
risk of the title ; the seller virtually declares that he will not 
warrant the title even as against himself ; a buyer might much 
better take a 

Deed of Bargain and Sale, wherein, although the seller makes 
no express covenants, he really grants or conveys the property for 
a valuable consideration, and thus impliedly claims to be the owner 
of it. 

Executor's Deed. — Of course if the contract is made by execu- 
tors under the will of a deceased owner they can only agree to give 
an executor's deed in the usual form. 

A Full Covenant "Warrantee Deed contains six covenants: 
First, the covenant of seisin; second, of right to convey; third, 
against encumbrances; fourth, for quiet enjoyment; fifth, further 
assurance; sixth, warranty. And these covenants are all worth 
having. 

Covenant of Seisin; Covenant of Hight to Convey. — The 
first two are practically the same thing, that the seller has posses- 
sion of the premises and the right to sell them; you know that it is 
unlawful to convey land when you are not in actual possession or 
control of it — that is, where some one is holding it in adverse pos- 
session; so if the grantor is not then possessed of the legal title and 
is not in possession of the premises when he delivers the deed, that 
covenant is broken as soon as it is made, and the grantee (but no 
one else) may at once bring an action for damages for the breach 
of it. 



33 REAL ESTATE CONTRACTS. 

The Covenant Against Encumbrances provides security 
against the assertion of every right to or interest in the land which 
may exist in third persons, inconsistent with the passing of the fee 
by the conveyance; sucli as a mortgage, taxes, an inchoate right 
of dower, judgments, conditions and covenants restricting the use 
of the premises; also existing easements upon the land, such as 
private rights of way, rights of artificial water courses, or drains, 
or sewers, or a right to cut trees, or to mine, or to maintain a dam. 
A seller, when he makes his contract, must therefore be very care- 
ful to satisfy each and every encumbrance or lien of such a char- 
acter that it would be allowed to remain on the property when he 
gives his deed, for he cannot put it in his deed if it is not written 
in the contract, and if it should be left out of the deed ary one of 
these circumstances will constitute a breach of this covenant even 
though the grantee is aware of its existence when he takes the 
deed and pays the consideration. 

J Inchoate Right of Dower. — It may be remarked here that an 
inchoate right of dower is a right that the wife has while her hus- 
band is alive; she really has not got any dower until she is a widow, 
and that is why the blank space usually found in the printed forms 
of deeds is written in with the words dower and right of dower. 

The Covenant for Q,uiet Enjoyment is an assurance against the 
consequences of a defective title and any disturbance thereupon; 
however, nothing but actual or constructive eviction from the land 
by the assertion of a paramount title will constitute a breach of this 
covenant; and indeed it is almost entirely covered by the covenant 
of warranty. 

The Covenant of Further Assurance is that the seller and hi^ 
heirs will hereafter sign, obtain, and give any further deeds that 
the buyer or the latter's lawyer may dem.and, but at the expense 
of the buyer ; and of course such a covenant is worth having. 

Covenant of "Warranty. — That the latter may be broken there 
must b3 an actual or constructive eviction from the whole or from 
a part of the premises. But the grantee need not resist the claim 
of the contestant until he has been evicted by process of law ; he 
may voluntarily yield the possession upon the demand of the 
owner of the paramount title ; but he does this at his peril, and if 
he should bring a suit upon the covenant the burden of proof 
would then be on him to show that the title to which he yielded 
was really paramount ; a judgment against the buyer in an eject- 
ment suit would be a breach of this covenant, or one in favor of a 
right to an easement, or to a widow's dower, or in favor of a mort- 
gage, when either is enforced. 

Time of Performance — At law you are held very strictly to the 
time fixed by the contract for the actual delivery of the deed; this 
is a case where time is said to be of the essence of the contract — 
that is, a vital provision of it. If the contract should happen to 
leave that out a reasonable time must be allowed. But the time 



REAL ESTATE CONTRACTS. 33 

named may easily become immaterial by the conduct of the parties, 
especially if they have once acquiesced in extending it. As a gen- 
eral rule, if a party has not been guilty of great neglect, if his delay 
can be easily explained consistently with good faith, the court of 
equity will afford relief. Each case, however, will depend upon its 
own circumstances, and the neglect or default of one party will not 
be excused where it would seriously injure the other party. If by 
accident you name in your contract a legal holiday or a Sunday as 
the day for closing the contract, the law says it shall be closed the 
next following day. 

Tender of Deed. — The seller cannot sue for the price or for 
damages for the non-performance of the contract, without having 
tendered the deed, unless the buyer has waived the tender, or has 
otherwise made it useless to offer it. And in New York it is not 
necessary for a vendor to make out and tender a deed on the day the 
purchase is to be completed; he is not bound to prepare it until the 
vendee is ready to demand it, and even then he is allowed a reason- 
able time to draw and execute it. If several lots were sold the seller 
is bound, if required, to give separate deeds. 

When Title Passes. — The title to the land passes to the pur- 
chaser when he accepts the deed, and, as we said before, the agree- 
ment then becomes functus officio, and the rights of the parties are 
thereafter to be determined by the deed and not by the contract^ 
still, the contract might contain collateral covenants or stipulations^ 
for instance, to do a series of acts at successive periods, for which 
purposes the contract would still remain ahve. If either party with 
good cause desires to rescind the contract he must act promptly; 
and the vendee especially should offer to rescind it as soon as he 
discovers the defect that entitles him to do so. 

^ The Deed, Not the Contract, Gives Title. — A contract for the 
sale and purchase of land is in its nature executory and does not give 
the buyer any present title; it is the deed which passes the title, 
and the acceptance of the deed is an execution of the contract 
which thereby becomes void and of no further effect. Equity some- 
times treats of a contract for the sale of land as if it had been 
executed, the purchaser being regarded as the owner of the land, 
and the seller as owner of the price for it and as holding the land 
in trust for the purchaser. 

Subscribing "Witness. — It is not necessary that the contract 
should be also signed by a subscribing witness; in fact, I would 
rather not be bothered with a subscribing witness to any instrument 
if it be " acknowledged " properly before a notary or commissioner 
of deeds, or justice of the peace, then it needs no other evidence 
to prove it. Get your contract so acknowledged by all who 
sign it. 

Seal. — It is not necessary that the contract should be under seal. 
There are these advantages about going through the legal form of 
putting a seal on any instrument; the seal is of itself proof of a 



34 REAL ESTATE CONTRACTS. 

valuable consideration, and a seal instrument is not outlawed under 
twenty years. 

That excellent lawyers' journal, the New York Daily Register, 
lately published the following pithy remarks upon the use of. a seal: 

" Now the law reformers are attacking that sacred symbol, the seal. Is 
there to be no end to their audacity ? Next they wUl ridicule signatures. 
What is more ludicrous than the legal effect of a mark or an initial ? 

" There is so much need of improvement in the law that it may seem 
venturesome to deny that any particular change would be any improve- 
ment; but we nevertheless must venture the assertion that in those jurisdic- 
tions where the seal is retained and used it has an important and valuable 
function, which doubtless we could do without, but which nevertheless is 
convenient and useful, and which no sarcasm can supersede. In itself there 
is nothing more insignificant or even undignified than a scrawl annexed to 
a signature, but, in the usage as it is commonly understood and in the rule 
of law which it does signify, it is important. 

7 " Thus a man makes a compromise and gets full acquittance. He knows 
that if he only gets an ordinary receipt in full the creditor can attempt at 
least to explain it away, if not indeed wholly to disregard it ; but if he gets 
a sealed release, he knows that he has a protection which the creditor will 
not undertake to question. The simple rule that the paper waf ered on, or 
n some jurisdictions a scrawl following the signature, will make this differ- 
ence in the effect of the instrument is a great convenience. 

" In the busiaess transactions of men there are many cases where receipts 
in full are given which the parties do not mean or desire to be conclusive 
to the extent of a sealed release. If the symbol of the seal were abolished, 
men would still continue to endeavor to make these two classes of instru- 
ments, and the lawyers would have to devise some form of words which 
would supply the place of a seal, as, for instance, the clause reciting the 
occasion in conveyances of an absolute and conclusive release, and then it 
would take some years of doubt and litigation to determine whether such a 
clause would have the effect a seal has at common law, and what was the 
proper form in which it should be expressed. 

"Again, a promise to pay money, if unsealed, is barred by the statute of 
limitations at six years; if under seal, it is not barred until twenty years. 
This is a convenient and desired distinction. In mercantile affairs men pre- 
fer the shorter limitation ; in permanent investments they prefer the longer 
limitation. 

" This is the reason why in one case they use a promissory note and in the 
other a bond. There is no law requiring men to use seals for such purposes, 
but the substantial advantage of the distinction is the reason why their use 
continues. If seals were abolished, conveyancers would at once be requested 
by their clients to devise some form of words that would serve to take the 
place of the seal, and with the same uncertainty as in the case of a release. 

" The law does require a seal to transfer real property. This requirement 
may be unnecessary, but we have little doubt that if seals were abolished 
purchasers of land and mortgages would still desire conveyances to be 
sealed, and that the signers of instruments would still continue, as a general 
thing, to consider a little more carefully an instrument which bears a seal 
before signing it than a simple contract. Nor is it just to say that a sealed 
deed is worthless; for if any consideration has been paid it is good as an 
executory contract to the extent of the act of the purchaser. 



REAL ESTATE CONTRACTS. 36 

•' In fact, the distinction between sealed and unsealed instruments serves 
really in the ordinary affairs of business men somewhat to the same useful 
purpose that the distinction between oral and written contracts serves iu 
conveyancing. A man who contemplates parting with the title of real 
property may negotiate as much as he please with the offer, and accept offers 
or come as near an offer or as near an acceptance as negotiation may bring 
him without any fear (as long as he receives no money, or no consideration 
and signs no paper) that he will be bound for anything except perhaps 
brokers' fees, until the terms are so far settled and agreed upon as to be 
reduced to writing and signed, 

"In itself, the scrawl of the name at the bottom of a paper is as ridiculous 
a thing as a scrawl or a wafer, but its legal significance is of great value 
and importance. In an abstract, moral or theoretic sense, there is much 
plausibility in saying that a man should be as much bound to convey by a 
verbal offer accepted as by a written one. But to abohsh the distinction 
between verbal and written contracts to convey land would turn deahng 
in real estate into a perilous sort of business. The nature of the business 
itself as transacted by men as they go, negotiating under incomplete knowl- 
edge and fickle impulses and varying necessities, requires that there should 
be some separate formality to distinguish between coming to an understand- 
ing and an actual binding contract, and that men should be left free to 
come to a definite understanding and agree with each other, while yet the 
insignificant scrawl of the signature which is necessary to turn that under- 
standing into a binding contract should remain to be done as a separate act. 
■ " The ludicrousness of the symbol is no argument against the deep-rooted 
distinction in thp usages and customs of business, and to abolish the seal 
would not obliterate the distinction." 

Signatures. — As we have said before, it is not absolutely neces- 
sary that the contract should be signed by both parties; but in ordei 
that either party can be successfully sued, for example, before the 
buyer could be forced to pay the price agreed on, he must have sub- 
scribed the contract, unless indeed he has entered into possession of 
the premises, and thus there is a partial performance sufl3.cient to 
take it out of the rule of the statute which requires the contract to 
be in writing; but as there is a right way to do everything, and you 
never know what may happen, always have the buyer sign as well 
as the seller. 

Recording Contract.— Theoretically the record of a contract is 
not notice to a third party who might buy from a dishonest seller 
and take a deed of the same piece of property, without knowledge 
of such an outstanding contract; he is not bound to search for the 
record of such a contract; but if the contract be recorded, as 
it often wisely is, the register or county clerk will return a mem- 
orandum of it on a search for conveyances, and then knowledge, 
that is, notice of it will be brought home to the otherwise innocent 
third party, and the rights of the would-be purchaser under the 
first contract be preserved. It is therefore often wise for the bi^yer 
to go to the expense of recording his contract. 

Sometimes such a contract is given by way of security for a debt; 
it is then a mortgage and should be recorded with mortgages. 



86 REAL ESTATE CONTRACTS. 

Vendor's Lien. — The seller of lands has a lien on them for the 
unpaid purchase money against the buyer; but not against one who 
has bought in good faith from the first buyer and without a notice 
of the original vendor's lien; but if a bona fide purchaser has 
bought without notice he will not be protected if he pays after 
notice; he must have purchased in good faith, have paid a really 
valuable consideration, and must have known no fact sufficient to 
put him on inquiry, or the original lien of the seller will survive 
against him. 

The seller can waive his lien, and that very easily, by any act 
which shows his intention to release the land; as for instance the 
taking of a mortgage, or the buyer's note with security; or the note 
of a third party, even though it should prove worthless; but merely 
taking unsecured personal liability of the buyer, as for example his 
note alone, is not such a waiver; nor would it be if he were to take 
securities known to the buyer to be worthless but represented by 
him to be good. A receipt of part of the purchase money is not a 
waiver of the seller's lien for the balance. But if the seller ever 
gives up his lien fairly and willingly, that is the end of it, and it 
cannot be revived again in his favor. 

Buyer's Lien. — But the buyer also has a lien on the land for 
money which he may have paid on the contract for its purchase, 
when the contract is broken by the seller; and if he has entered into 
possession of the land and made improvements on it he would have 
a lien for their value. 

In an ordinary contract where the buyer has to pay and the seller 
to give the deed at the same time, neither one can successfully sue 
without alleging and proving the performance on his own part, or 
readiness and willingners to perform. 

Buyer Cannot Get His Earnest Money Back. — If the seller has 
performed his part of the contract, and the failure to carry it out is 
the fault or misfortune of the buyer, the latter cannot recover back 
any money that has been paid by him on account; he can only get 
it back when both parties agree to rescind the contract, or where 
the seller is unable or unwilling to perform it on his part, or else has 
been guilty of fraud in making the contract. And so a buyer who 
has paid money on a void contract for the sale of land, which would 
come within the statute of frauds, cannot recover it back if the 
seller is able and willing to fulfil the contract on his part. 

' Buyer Not a Tenant.— A party who goes into possession of land 
under a contract, before he gets his deed, has been held by some courts 
to be a tenant at will; as such he would be entitled to the growing 
crops, supposing the land were a farm; and on the other hand, if he 
had had any beneficial use of the premises and then abandon them 
and broke his contract, he could be made to pay rent for the use and 
occupation; the courts have held both ways, however, on this ques- 
tion, and the latest decisions, and those which would, I have no 
doubt, govern in the State of New York, hold that the relation of 



REAL ESTATE CONTRACTS. 37 

landlord and tenant cannot exist between the buyer and seller of 
land when the latter enters into possession under a contract and 
fails to pay the purchase money; nor would such a default entitle 
the seller to claim the contract as void and hold a buyer as a tenant 
liable to pay rent; but he can bring an ejectment suit to get pos- 
session of the land, and sue for the purchase money, or bring a suit 
in equity to enforce his vendor's lien. 

Damages for Breaking Contract. — Ordinarily the damages 
which a buyer can recover against the seller, when the latter breaks 
his contract and fails to give a deed as agreed, will be the amount 
that the buyer has paid on account, the lawful mterest, and prob- 
ably, I may say certainly, his fair expenses that he has paid for 
examining the title; this is where the seller has been guilty of no 
fraud, but the contract was made in good faith, and he has been 
unable to perform. If, however, the seller has been guilty of fraud, 
or absolutely refuses to give a deed when he can, or has undertaken 
to sell when he knew that he had no authority to make the contract, 
or if when he might remedy a defect in his title he refuses to do so, 
he can be made to pay the buyer damages for the loss of the bar- 
gain, and the proper measure of such damages is the value of the 
property at the time he broke the contract. If the seller, believing 
that he had the right to sell, should make the contract in good faith 
and then discover a fault in his title before he has received any of 
the purchase money, no damages could be recovered from him for 
refusing to give the deed. 

If after you take the contract and before you get the deed you 
employ and pay an architect to make plans for a building to be 
erected on the premises and the contract is broken and you do not 
get your deed, you cannot include in your damages the expense 
incurred for the architect's plan; the contract does not contemplate 
that the purchaser should prepare to build as if he were the owner 
before he becomes owner; it leaves him, until its promised perfor- 
mance, without the title or power or interests of owner. The expense 
therefore is not within the contemplation of the parties, nor is it an 
ordinary or anticipated consequence of the making of the contract. 

Damages Against Seller for Fraud by Agent, — If the seller 
receives and keeps the price, where his agent has been guilty of 
fraud and misrepresentation, even if the latter were unknown to 
the seller, the seller is liable to the buyer, and the latter may either 
reconvey and recover back what he has paid, or keep the land and 
sue for damages for the fraud. 

Seller's Damages. — The only way in which the seller can 
recover damages from the buyer for a failure to accept the deed is 
by an action for specific performance; and of course the measure of 
those damages is the full contract price. It is customary in the 
case of a sale at auction where the purchaser does not come forward 
and complete his purchase to put the property up again, and then 
the damages that can be claimed from the first purchaser will be 



38 REAL ESTATE CONTRACTS. 

the difference between the price at which the premises are first 
struck off and that which it brings at the second sale, together with 
the expenses of the re-sale; but this is not necessary in tne case of a 
private sale, at least in New York, and the seller can recover the 
full purchase price and interest, and the buyer who has failed to 
complete cannot limit him to the actual damages caused by the 
breach of contract. 

Liquidated Damages. — The parties, however, may and often do 
agree in advance how much damages shall be paid for breach of 
contract, and this is written in the contract, but you want to call 
theso liquidated damages and not a penalty. 

Quite often a clause is inserted in the contract giving to either 
party a certain sum, five hundred or a thousand dollars, or upwards 
(according to the value of the property) as liquidated damages to 
be paid by the other should the latter fail to give the deed or pay 
the price. These are put as liquidated damages, and not as a 
penalty, because the buyer or seller might be damaged by such a 
failure, indirectly yet seriously in many ways, and yet it would be 
difficult, and indeed impracticable, to put a money value on his 
damages; for this the law allows the parties to name a lump sum, 
and that will not be reduced nor inquired into by the courts. If, 
however, you should write in your contract that such an amount 
should be paid by either party as a -penalty for failing to carry out 
the contract, the law is opposed to penalties, mitigates and lessens 
them when possible, and if the defaulting party refused to pay such 
penalty, the one who sued for it would have a hard time proving 
exactly the money value of his damages. 

Rescission. — A contract may be set aside for mistake of fact; 
also one which has been procured by fraud or by false representa- 
tions; but there must be no delay in bringing such a suit; but if 
the purchaser knows the representation to be false, then his con- 
duct was not infiuenced by it and he has no right to make com- 
plaint. Such a contract may be set aside for the misrepresentation 
of the buyer as well as that of the seller; in a case in New York 
the buyer said that the premises, a piece of wild land, were worth 
nothing except as a sheep pasture when he knew that there was a 
valuable mine on it of which the seller was ignorant, and the con- 
tract was set aside for fraud. And there may be constructive fraud 
which will avoid the contract, as where the seller or the buyer is a 
lunatic or an idiot, or where the deed or contract was obtained from 
a man intoxicated. The Court of Equity will quickly interfere in a 
case where there are trust and confidence on one side and influence 
and control on the other, as where a parent sells to a child or a 
guardian buys from his ward; and in another New York case the 
conveyance was set aside where an uncle induced his ignorant 
young nephew to accept a deed and to cancel a debt of the uncle, 
three times the value of the land. It must be borne in mind that 
in such cases, where there was a relation of trust and confidence 



REAL ESTATE CONTRACTS. 39 

between the parties, it is not the duty of the one imposed upon to 
show that the contract was unfair, but the burden of proof is on 
the other party to show that there was absolute fairness and equity 
in the whole dealing. Agreeing to take too small a price for your 
land is not a good ground for avoiding your contract; but if there 
be other circumstances existing which make it inequitable to 
enforce the latter then inadequacy of price may also be considered; 
this is more likely to arise where confidential relations have existed 
between parties and have been abused. 

Fraud — Purchaser's Remedies. — A buyer of real estate who was 
induced to purchase by means of false representations has 
his choice of remedies ; he may rescind the contract and after 
an offer to reconvey, recover back the consideration paid, or he may 
keep the land and recover damages for the fraud. The measure of 
these damages is not, as it is in case of a breach of a covenant in a 
deed, the price paid and interest, but is the difference in value 
between the property sold and that for which it would have sold 
had it been as represented. 

Reformatioii for Fraud or Mistake. — If when you are selling 
your land you make erroneous statements about it, no matter if 
you believe them to be true, it would be a material mistake of fact ; 
and if you did not believe them it would be a fraud on the pur- 
chaser ; and in either case he could get the Court to reform the con- 
tract or the deed. 

Alteration. — A material alteration of any written contract by 
one of the parties to it, without the knowledge or consent of the 
other, not only discharges the latter from all liability upon it, but 
if fraudulently made will release him also from all liability upon 
the consideration for which it was made. 

^Specific Performance. — When either party will not keep the 
contract, when the seller will not give the deed or the buyer pay 
the price as agreed, the injured party may bring a suit in equity 
and force the delinquent to carry out the agreement ; thus the 
Court may order the seller to accept the price and to deliver a 
properly executed deed, and may lock him up in jail until he obeys 
If, however, the injured party can be compensated in money the 
relief of specific performance will not be granted to him ; it is a 
remedy which rests in the sound discretion of the Court. Still it is 
almost a matter of course for specific performance to be decreed 
where a contract for the sale of land is fair and certain and 
reasonable. 

In one case a buyer in New York City oaly gave himself eight 
days in which to get his title searched ; when the time was up of 
course he was not ready and he asked an adjournment, which was 
refused, and the seller kept the $500 that had been paid down, and 
kept his land ; but three weeks afterward the buyer, having found 
the title good, offered the balance of the price, and when the deed 
was refused him brought such a suit, and the Court ordered the 



40 REAL ESTATE CONTRACTS. 

seller to give the deed and take the money, as it was shown that the 
situation of the property and of the parties had not changed so that 
any injury would result to the seller. And that is the principle 
that underlies all decisions in suits for specific performance ; relief 
will be given to a party who seeks it if he has not been guilty of 
negligence, brings his suit within a reasonable time, excuses his 
delay in completing the contract, and the situation of the parties or 
of the property has not changed so that injury will result. Some 
sellers would, in the case just cited, have found another buyer and 
have had a new contract to show at a higher price within that 
three weeks, whether the latter contract was ever carried out 
or not. 

Specific Performance — Title. — Before a buyer can successfully 
resist performance of the contract on the ground of defect of title 
there must be at least a reasonable doubt as to the latter, such as 
affects its value and would interfere with its sale to a reasonable 
purchaser, and thus render the land unmarketable. A defect in 
the record title may furnish a defense to the purchaser. But there 
is no inflexible rule that the seller must furnish a perfect record or 
paper title; it has frequently been held that defects in the latter 
may be cured or removed by parol evidence. 

Good Title Implied. — If your contract should be so carelessly 
drawn as not to specify the terms or form of the deed that is to be 
given, nor the nature and extent of the estate in the property 
intended to be sold, then such a contract impliedly warrants that 
the seller has a good title and will convey a good title, free of all 
encumbrances. 

Fixtures. — Buyers frequently desire to know whether certain 
articles in the premises they contract to purchase will come to them 
under the contract as part of the real estate; this depends upon 
whether such articles are "fixtures" or not in the eye of the law. 
The rule as to what shall be deemed fixtures varies somewhat when 
the question arises between a landlord and tenant and between a 
buyer and seller of real estate. 

Mirrors secured to the wall by an iron clamp, and let into and 
glued to the mantel piece, and constructed at the same time and 
with frames of the same wood as the mantel, would be held to be 
fixtures; while a mirror resting upon a bracket and connected with 
the wall only as picture frames usually are, would not be. Chairs 
furnished to a theatre, of a special pattern adapted to the place 
where they are set and screwed to the floor because they cannot 
stand alone, are a part of the building. A steam engine and boiler 
may be set up in a building in such a way and under such a bargain 
between the seller of these articles and the landowner that they 
shall remain personal property, but machinery of great weight, 
especially adapted for a factory and permanently fastened therein, 
with the intention of leaving it there for permanent use, such as 
machinery fcr a twine factory or for a paper mill, would be fix- 



REAL ESTATE CONTRACTS. 41 

tures. Gas fixtures in a building, which can be taken away by 
simply unscrewing them, are only personal property and would not 
belong to the buyer unless specifically mentioned in the contract 
for the sale of the house and land; but the opposite has been held 
with regard to a sun-dial and a statue out of doors. 

There are three requisites to constitute an article a fixture as 
between the seller and buyer of real estate; the article must be 
actually annexed to the land or house, it must be applicable to the 
use or purpose to which the part of the land or house with which it 
is connected is appropriated, and the person who annexed it to the 
house or land must have intended to make a permanent accession 
to the freehold. 

** While not agreeing as to the necessity for or the degree of im- 
portance to be attached to the fact of actual physical annexation, 
yet the authorities generally unite in holding that, to constitute a 
fixture, the thing must be of an accessory character and 
must be in some way in actual or constructive union with 
the principal subject, and not merely brought upon it; that 
in determining whether the article is personal property, or has 
become a part of the realty, there should be considered the fact and 
character of annexation, the nature of the thing annexed, the 
adaptability of the thing to the use of the land, the intent of the 
party in making the annexation, the end sought by annexation, 
and the relation of the party making it to the freehold. These other 
tests named, while having an important bearing upon the questions, 
whether there has been an annexation, and, if so, its effect, do not, 
however, do away with the necessity of annexation, either actual or 
constructive, to constitute a fixture. This would involve a contra- 
diction of terms, and wipe out the fundamental distinction between 
real and personal property. A thing may be said to be constructively 
attached where it has been annexed, but is separated for a temporary 
purpose, as in the case of a mUlstone removed for the purpose 
of being dressed, or where the thing, although never physically 
fixed, is an essential part of something which is fixed ; as in the 
case of keys to a door, or the loose cover of a kettle set in brickwork. 
It is, perhaps, somewhat on this principle that the permanent and 
stationary machinery in a structure erected especially for a particular 
kind of ma,nuf acturing has been held fixtures, although very slightly 
or not at all physically connected with the building; because without 
it the structure would not be complete for the purpose for which it was 
erected. Ponderous articles, although only annexed to the land by the 
force of gravitation, if placed there with the manifest intent that 
they shall permanently remain, may be fixtures. But, while physical 
annexation is not indispensable, the adjudicated cases are almost 
universally opposed to the idea of mere loose machinery or utensils, 
even where it is the main agent or principal thing in prosecuting 
the business to which the realty is adapted, being considered a part 
of the freehold for any purpose. To make it a fixture, it must 



42 REAL ESTATE CONTRACTS. 

not merely be essential to the business of the structure, but it must 
be attached to it in some way, or, at least, it must be mechanically 
fitted so as, in ordinary understanding, to constitute a part of the 
structure itself. It must be permanently attached to, or the com- 
ponent part of, some erection, structure or machine which is 
attached to the freehold, and without which the erection, structure 
or machine would be imperfect or incomplete. 

*' In the application of this principle the Courts have held that beer 
casks, fermenting tubs and a copper cooler used in the brewery 
were protected by a chattel mortgage, and not covered by the 
mortgage of the real property, saying that the intent that they 
should remain in this brewery for permanent use there is unimpor- 
tant. Intent alone will not convert a chattel into a fixture. A 
farmer may take a plow or any other farm implement upon his farm 
with intent to keep and use it there until it wears out, but this will 
not make it real estate." 

Hepairs. — The seller is not bound to keep the premises in repair 
after the contract is signed, unless the latter expressly says so. 

Buyer Cannot Dispute Encumbrances. — If you are the buyer and 
find encumbrances on the title, if you should accept a deed subject 
to all liens, which you assume and agree to pay, you cannot after- 
wards dispute the validity of any of those encumbrances — for 
example : If a mortgage on the property were tainted with usury 
you could obtain no advantage from that, but would be obliged to 
pay the whole amount of principal and interest. 

Encumbrances. — Both seller and buyer, therefore, must be very 
careful to enumerate in the contract what encumbrances are on the 
property. A party wall is not an encumbrance, but an agreement 
to allow a clothes-post (as often in tenement property) is ; it is not 
practicable to enumerate here all rights that would be so held ; and 
the general rule can only be given that in case of doubt as to any 
fact affecting the particular piece of property, that fact should be 
mentioned and the agreement about it noted in the contract. 

There is No Implied Warranty in a Contract for the sale of real 
estate except as to title ; and as we have said before, all agreements 
relating to the purchase and sale are merged in the deed, unless the 
contract clearly shows a different intention ; this includes the 
covenant of title ; a good example of a contract which had cove- 
nants that remained alive after the deed was given is one where 
the buyer agreed to take the property subject to a mortgage 
and to taxes not exceeding two thousand dollars, and he agreed 
to assume and pay the taxes ; the seller gave a deed which 
conveyed the property subject to the mortgage and taxes, 
but which did not contain a covenant on the part of the 
buyer to assume and pay the taxes as he had agreed, although 
he kept back two thousand dollars out of the consideration 
named ; the mortgage was afterwards foreclosed and those 
unpaid taxes were paid by the referee out of the proceeds of the 



REAL ESTATE CONTSACTS. 43 

foreclosure sale, and the result was a deficiency of over two thou- 
sand dollars against the seller. He brought a suit against the 
buyer on the contract and sale, and the Court decided that the 
latter's covenant to pay being part of the consideration for the 
conveyance was not merged in the deed, and that his failure to pay 
those taxes was a breach of that covenant, and that he must pay 
said sum of two thousand dollars, by which amount the deficiency 
judgment had been increased. 

"Agrees to Sell," not "Sells." — Frequently contracts are 
carelessly drawn so as to say that the seller " hereby sells and con- 
veys" to the buyer instead of saying that he " agrees to sell and 
convey." Such an instrument, however, would not be construed 
by the Courts as an actual conveyance or deed, but from all the cir- 
cumstances and from reading the paper as a whole it would be held 
to be a mere agreement to convey. 

Contract Sometimes is a Mortgage. — In order to prevent usury 
and extortion an agreement to convey land will often be decided 
by the Courts to be a mortgage upon the repayment of the money 
paid, with interest ; and an agreement to sell the land back again 
is often held to be similar to a mortgage, for example, in a suit just 
tried this July, 1885, the facts were that away back in 1852 a man 
bought property in Thirteenth street for $23,000, which he after- 
wards conveyed to his wife and died. In 1878 there were two 
mortgages on the property amounting to only $8,000 in all ; the 
second mortgage, only $2,000, falling due, the widowed owner being 
financially embarrassed, in order to prevent the sacrifice of the 
property on a sale agreed with the holder of the second mortgage to 
deed the property to the latter, and if within three years she should 
pay up in full the second mortgagee agreed to reconvey it. The 
old lady, over sixty, was unable to redeem it, and then the second 
mortgagee claimed to be the full owner ; but a suit was brought 
for a reconveyance and an accounting for the rents and profits on 
the ground that the contract with the second mortgagee and the 
deed given under it constituted an equitable mortgage. It resulted 
in a judgment in favor of the widow. 

Contract May Still Exist. — A very good example of the way in 
which part of a contract may still survive the execution and deliv- 
ery of the deed is a case where a buyer agreed in the contract 
to take the property subject to taxes not exceeding $2,000 in 
amount, and to assume and pay those taxes; after the deed was 
delivered it was discovered that there had been omitted from it the 
clause which it should have contained by which the grantee should 
have assumed and agreed to pay those taxes; when a prior mort- 
gage on the property was foreclosed there was a deficiency at the 
sale, the amount of which was increased by those $3,000 worth of 
unpaid taxes, and the buyer under the contract being afterwards 
sued for that $2,000 the Court determined that he could be held and 



54 REAL ESTATE CONTRACTS. 

was bound to pay it under the covenants in the contract of sale 
although that clause had been left out of the deed. ^^ 

Real Owner. — The seller impliedly represents and warrants in 
the contract, unless there are express statements to the contrary, 
that he is the owner of the property which he assumes to sell, and 
while a concealment of his want of title, should it not belong to 
him, is not necessarily fraudulent, because he may intend and be 
able to become the real owner before the time of closing the con- 
tract, yet if he did intend to defraud and deceive on this point and 
knew that he could not become such owner, the buyer may rescind 
the contract and recover any money he has paid. 

Payment. — If the price is payable in instalments the seller can- 
not Bustam a suit for the balance of the price without first proving 
that he himself had tendered a deed. 

Interest on Purchase Money Mortgage. — Where the contract 
says that a purchase money mortgage to be given shall bear even 
date with the deed, " and interest from the date thereof," but does 
not say what shall be the date of the deed, but only names the date 
for the delivery of the latter, the mortgage will bear interest from 
such date named as the date of delivery. 

Time. — It has been decided that if the contract expressly fixes 
the place and day and hour for performance, this makes time "of 
the essence of the contract ;" in the suit that decided this, however, 
there had been an adjournment to another day and hour to enable 
the buyer to examine an objection to title which was specified, and 
when that time arrived the buyer's lawyer was sent for and refused 
to leave his office and only answered by requesting several days 
further adjournment; when the buyer afterwards brought a suit 
for specific performance he was defeated on the aforesaid ground. 

Damage to Premises after Contract Signed. — Sometimes after 
a contract is signed the house burns down, or careless blasting in 
the neighborhood injures it, or the premises are otherwise dam- 
aged ; the buyer then objects to paying the full amount of the con- 
sideration ; but the law is that he must pay in full. Courts of 
equity consider that a valid contract obliges the seller to give a 
deed of the land to the purchaser, and they hold that whatever 
ought to be done should TDe considered already done, and they look 
upon the seller as a trustee of the land for the buyer ; hence the 
buyer gets all the benefit if there be any increase in the value of 
the property after the contract is signed, as from a new railroad or 
a park, or any other public or private benefit ; and he has to stand 
all the loss or decrease of value that may come, whether the 
weather damages it, or some part decays, or it burns up, or is bat- 
tered down by accident, or destroyed by a mob ; he must in any 
event pay the full price to the seller, unless, indeed, the seller him- 
self should do some wrongful act of waste upon the premises which 
would give the buyer a valid claim against him for damages. 



REAL ESTATE CONTRACTS. 45 

Insurable Interest. — Hence the buyer under a real estate con- 
tract has an insurable interest in it to the full amount of the value 
of the buildings, and can take out a valid policy for the time while 
title is being examined. If, however, liquidated damages are named 
in the contract for its non-performance, a policy for that amount 
would be sufficient to protect the buyer, as he could then safely 
refuse to complete if the premises were seriously injured by fire. 

The seller, however, does not lose his insurable interest because 
the buyer has also acquired one, but any policy he has will still 
hold good (provided he notifies the company of the change that has 
taken place in his interest as such policies all require); only the 
insurance company, paying his loss, will be subrogated to his rights 
and entitled to receive the balance of the purchase money from the 
buyer. 

Rents. — If nothing be stipulated in the contract, rent of premises 
which has not yet fallen due when the deed is given will go entirely 
to the purchaser; and, on the other hand, rent already due, although 
even in advance and for a period of time extending beyond the 
delivery of the deed, will remain the property of the seller. The 
fairer way, how ever, is to agree in the contract to apportion the rent 
up to the date of delivery of the deed. 

Interest on the Price. — If the time for closing the title be 
adjourned by consent for whatever cause, and nothing be stipulated 
at the time of granting the adjournment, no interest upon the 
balance of the purchase money to be paid, nor upon any part of the 
price already paid, can be demanded in addition to or differently 
from the specific agreements about interest in the contract. And 
unless care be taken the seller might become entitled to additional 
rent falling due during the adjournment, or become liable to pay 
additional taxes (under his agreement to give a clear title), or the 
buyer become released from paying interest on some mortgage 
during the period of adjournment. The better way in agreeing 
upon such adjournments is to stipulate, when agreeing to them, 
that " the title shall be closed as of the original date of delivery of 
deed first agreed upon." 

Mortgages. — The contract must carefully specify how many and 
what mortgages are to remain as liens upon the premises ; and if 
any agreement is made as to how long a mortgage has to run, or is 
to be allowed to remain upon the property, see that this is explicitly 
stated. 

Assumption of Mortgage.— If you do not intend to be bound to 
pay a mortgage already on the premises (suppose, for instance, that 
you might be glad to let the property go if only you are not bound), 
be very careful not to *' assume and agree to pay as part of the con- 
sideration ;" all you want to do then is to take it " subject to " a 
certain tnortgage. It is somewhat surprising how often the 
*' assumption clause " slips into a contract, and then (as 'it must) 
into the deed, unnoticed by the buyer. 



46 REAL ESTATE CONTRACTS. 

By-the-way, the agreemeDt to assume a mortgage need not be in 
writing to be valid and binding ; an oral promise by the buyer is 
sufficient where the seller fully performs his agreement, executes 
and delivers a deed, and givea possession of the premises to the 
buyer. So look out what you agree to, orally, about that. 

[Oral— Verbal. — When you speak of anything agreed to or done 
by word of mouth, don't call it verbal ; call it oral ; everything that 
is written in words is verbal; that is what verbal means, "by 
words ;" everything that is done or promised in writing as well as 
in speech is done verbally ; these words are used very carelessly 
and incorrectly.] 

An agreement to pay the accrued or the future interest upon a 
mortgage will not, however, bind the purchaser to pay th(! principal. 

■ Purchase Money Mortgage. — And so, too, if the buyer is to 
give back a purchase money mortgage for part of the price, all the 
details about this mortgage should be carefully written out in the 
contract; not only how long it is to run and at what per cent., but 
all the special covenants and agreements which the one who is to 
take the mortgage desires to have in to protect himself; and the 
buyer must notice these, as some of the more modern conditions in 
mortgages are quite burdensome. 

Mortgage With Full Agreements. — An iron-clad mortgage 
now contains agreements on the part of the mortgagor that if inter- 
est remains unpaid, say thirty days, the whole mortgage may be 
foreclosed (this time of grace, however, is in favor of the mortgagor); 
that if taxes or assessments remain unpaid, say ninety days, the 
whole mortgage may be foreclosed (these days of grace are also in 
mortgagor's favor;; that if default be made in payment of interest 
or principal when due the mortgagee may at once take possession 
of the premises, collect the rents, and pay all necessary expenses, 
without any legal proceedings, and without being deemed a tres- 
passer; that in can;e of any such default the mortgagee may at once 
upon beginning a foreclosure suit and without any notice to or 
consent of the mortgagor have the Court appoint a receiver to 
collect the rents and take care of the property; that in case of any 
such default the mortgagee may have the property sold according 
to law and apply the proceeds to payment of the debt and expenses 
of foreclosure and sale; that the mortgagor will keep the premises 
insured or the mortgagee may do it and add the premium to the 
mortgage; that if the mortgagor does not pay the taxes and assess- 
ments the mortgagee may do it and add them on to the mortgage; 
and that the mortgagor and his heirs and assignees will at any time 
make and deliver any further deeds and instruments the mortgagee 
may think he needs to make his title good. Each detail, such as 
the foregoing and relating to the mortgage, must be specified in the 
contract of sale, or the buyer or seller cannot insist upon having 
it in the mortgage when it comes to be drawn. 



REAL ESTATE CONTRACTS. 47 

Mortgage by a Corporation Biiyiiig. — Under the laws of New 
York, before a mortgage given by a corporation can be valid the 
duly executed written assent of two-thirds of the stockholders must 
be filed with the County Clerk where the property is situated. This 
assent, however, is often deemed unnecessary in the case of a 
purchase-money mortgage given by the corporation; still, as 
opinions differ, it is better to have the stockholders execute such an 
assent even in that case, and thus prevent objections, however 
mistaken, from any source. 

Signature by a Corporation. — And, by-the-way, a deed or mort- 
gage or other instrument executed by a corporation does not at law 
require any signature at all; the president need not put his name 
there nor sign the name of the corporation either alone or by him- 
self as president; all that is necessary is to affix the seal of the 
corporation. 

However, it is customary to have the executive officer or officers 
sign, and where the by-laws or the certificate of incorporation, or 
the charter of the corporation requires in express terms that such 
instruments be signed or countersigned by certain officers, such 
signatures would of course be necessary to their validity. 

Leases. — If there be an outstanding lea^e on the premises sold, 
the seller for his own protection must cause the details of such 
lease to be specified in the contract, and that the buyer takes 
subject to the same; so, too, if the buyer wishes to be certain that 
the premises as leased bring in a certain a'uount of rent for a cer- 
tain term, he should have those items carefully mentioned. 

Will. — If your property came to you by will, be sure and get 
good legal advice and know what the will means, and whether you 
have the power and right to sell, before you sign a contract. Nice 
questions often arise ; parties lately consulted me just in time to 
prevent their signing a contract to sell and give a warrantee deed, 
when the will which gave the property left it to the widow for life, 
then to the son, but if the son should die first and leave no 
children, before his mother, the widow, then the property to go to 
the brothers and sisters of the deceased ; the widow and son want 
to sell the property, but no one who knew what he was about 
would take their deed, and no one to-day can give a perfect title 
under that will. On the other hand, the General Term of the 
Supreme Court in New York has just decided, this October, 1885, 
that where a will left the property to the widow as long as she 
remained unmarried and his widow, but on her decease or remarriage 
to the son or his heirs, the title vests in the son, subject to the 
widow's life estate, and that if they both join in the deed, they can 
give good title ; and the Court made the purchaser take his deed. 

Short Contracts of Sale. — While carelessness and haste should 
by all means be avoided in making real estate contracts, yet some- 
times exigencies arise when very brief contracts are necessary: and 
here I quote, with permission, the practical, pithy remarks of that 



48 REAL ESTATE CONTRACTS. 

eminent lawyer Mr. Austin Abbott, which appeared in the Daily 
Register (the New York law journal), of September 24, 1885: 

It is often convenient to know how concise and informal a writing will 
serve to bind the parties to an executory contract for the purchase and sale 
of real estate. A clear idea on the point is serviceable often to the attorney 
whose client brings him a very informal memorandum, as representing a 
contract he has made and which the attorney is to superintend the fulfill- 
ment of. It is also useful often in delicate negotiations, where a nervous 
or uncertaiu owner or buyer may hesitate if left long enough to have a 
formal contract drawn. 

The statute requires that " the contract, or some note or memorandum 
thereof, be in writing and be subscribed by the party by whom the lease or 
sale is to be made," or "by the agent of such party, lawfully authorized." 

The courts unanimously interpret this as requiring a note or memorandum 
expressing all the terms of the agreement. 

The document may be as trivial in form as it could happen to be, if it 
meets this requirement in substance. 

It is no objection to its validity that it is in pencil, or that it has no seal, 
no witness, no acknowledgment. 

An engrossed contract will not satisfy the statute any better than a 
receipt or a telegram, or an entry in one's diary, or an aflSdavit in legal 
proceedings, or correspondence, or even a letter to a third person, so 
"long as the substance is there; the parties, the agreement, the premises, the 
terms and the subscription. 

It is no objection to the memorandum that it was not made at the time 
the bargain was struck, nor that it was not delivered to the other party, 
unless it was prepared and subscribed in anticipation of an intended dehv- 
ery and intended not to take effect meanwhile. 

It is clear then that the memorandum is not the contract, but only a 
peculiar kind of evidence of the contract, without which the conti'act is not 
enforcible at law. 

The essentials are parties, designation of premises, price, and terms if 
any credit is agreed on. 

Both parties must be designated, and the premises must be designated, 
but a memorandum is not invalid because it does not give the residence of 
the parties or the precise location of the premises. An agreement by John 
Smith to convey to John Jones a house on Church street, without saying 
anything of the whereabouts of either, would be foolishly meager, but, if 
htigation arose, Jones might prove that the particular John Smith whom he 
sued on the contract was the same John Smith who owned and occupied 
a house and lot on Church street, in the town of SomervUle, Mass., and 
no other on any street of that name, that the lot had well-defined bound- 
aries, and that immediately before signing the memorandum the two men 
had been in treaty for a sale of those premises. When these circumstances 
were proved a Court well advised of the present state of the law would 
hold that the writing sufficiently designated the parties and the premises. 
But it is nevertheless true that many a purchaser or vendor has been 
unable to enforce a similar contract because the circumstances were not 
susceptible of the clear or satisfactory proof necessary to enable the Court 
to apply it to specific premises and a definite area of land. 

It is always enough, however, with land that is in actual possession or 
has a known designation to describe it by such possession or designation, as, 



REAL ESTATE CONTRACTS, 49 

for instance, the farm now occupied by me, or the house and lot known as 
"No. 1 Church street in the town of Somerville and State of Massachusetts. 

There are the best of reasons for giving a full and accurate description 
such as is usual in deeds when the case allows of so doing, but the advan- 
tage secured does not relate to the binding effect of the memorandum, but 
to the precise extent of the obligation assumed by the signer. 

The price and terms, if any, must also be designated, but here again the 
utmost conciseness is consistent with validity. 

A receipt for a payment, if it designates the parties and the premises 
and specifies th3 full price agreed on is sufficient, therefore as against the 
party signing it, except that if it be for a part payment it should fix the 
time for paying the balance. Whether the latter point is essential, how- 
ever, the Courts are not agreed. Some have held that on an agreement to 
pay money without fixing a time the law implies an obligation to pay imme- 
diately. This is very true in the case of debtors ; yet, a part payment on 
an executory contract may justly be thought to imply an understanding 
that the balance should not be instantly due, but payable at some future 
day. A receipt for payment in full, however, might properly be deemed to 
imply an obligation to convey forthwith. 

If all these elements of the contract are thus indicated the memorandum 
lacks only one thing more, and that is words of agreement. The note or 
memorandum must be a note or memorandum of a contract. 

These suggestions are not given as guides for drawing contracts. In a 
great proportion of cases there would be serious disadvantage in their 
use. The death of either party, the falsehood of a witness, the destruction 
of buildings by fire, many other incidents such as often occur between 
contract and conveyance, would be very likely (to invite litigation. No 
one should rely on such a thread when he can have a strong cord, but 
there are often cases when the negotiator must do the best the moment 
admits of. And there are often cases when the attorney has to advise off- 
hand on the sufficiency of such a memorandum. 

In the latter class of cases he should ask his client if the scrap of paper 
shown him embodies aU the terms of the agreement, otherwise it may be 
found not to satisfy the statute. 

And for the same reason in drawing a short memorandum especial 
care should be taken that nothing which is actually agreed on is omitted 
from the memorandum. 

Exchange of Premises. — An exchange of land, according to 
Blackstone, is a mutual grant of equal interests, the one in consider- 
ation of the other. Generally, however, there is an inequality of 
values which is made good with money, or by mortgage, or other- 
wise. When one party has performed his part of such a contract and 
the other for any reason fails to perform on his part, the question 
arises what damages the former is entitled to. In New York this 
has been held to be either the purchase money or consideration 
stated in the deed of the property conveyed by the performing 
party, or the value of the piece of property contracted to be con- 
Teyed to him, as he might elect ; and in another case where the 
defaulting party had agreed to not only convey a piece of land in 
exchange, but also to pay a certain sum of money, and also to 
transfer a certain debt due from a third person, and performed all 



50 REAL ESTATE CONTRACTS. 

but the transfer of the debt, the Court decided that the 
party who had fully performed was not bound to deduct from the 
value of his piece of property the money and the value of the piece 
of property he had received and then sue for the balance, but that 
he might sue outright for the value of the debt which had not been 
transferred, although that might be greater than the balance of the 
value of the first piece of property ascertained as aforesaid. 

It is better in an exchange to so express it in one contract, just as 
the agreement is, and not to have two separate contracts of sale 
from each party to the other, which would have to be connected 
together by parol evidence should any trouble arise. 

Purchaser Not a Tenant.— If a purchaser be allowed to go into 
possession before he has paid all the price, and he afterwards fails 
to pay up and refuses to take title, the seller cannot claim that the 
buyer is his tenant, either at will or any other way, and sue him 
for rent, for use and occupation; all the landlord can do is either sue 
him at law for the balance of the price, or better still in equity to 
foreclose his vendor's lien; or else take the long-winded way of an 
ejectment suit, where either party has the right to three trials 
altogether ; the wise man will therefor get his money first before 
delivering possession. Taking a mortgage for part of the price is 
all right, because the mortgage protects the seller. 

Delivery of Possession. — The buyer ought not to pay his money 
until he gets absolute possession of the premises, otherwise he may 
get a lawsuit on his hands. Possession can be given by going on 
the premises and giving the key, or by simply giving the key if the 
house is vacant ; or by assigning over the lease if there be a lease ; 
if there be no written lease the buyer should ask every person in 
possession by what right he is there, and the landlord should give a 
letter to each tenant telling him to pay the rent from a certain day 
when due to the buyer. 

To Bind Heirs and Administrators.— If the seller dies, his 
heirs must carry out the contract and give a deed in accordance 
therewith. This, however, often necessitates considerable delay. 
If the buyer dies, his administrator is bound to carry out the con- 
tract, pay the price and take the deed. Where, however, the per- 
sonal estate of a deceased buyer is insufficient to pay his debts, a 
New York statute provides that his executors or administrators may 
apply to sell his interest in any land held under a contract for the 
purchase thereof. The sale to be made subject to all payments due 
or to become due on the contract. 

Assignment of the Contract. — An assignee of a contract for 
the sale or purchase of land takes it subject to all the equities 
against, and the special agreement is made by, his assignor. But if 
the buyer assigns the contract, his assignee is not personally liable to 
pay the remainder of the purchase money due under the contract, 
unless there is an express or implied agreement on his, the 
assignee's, part to do so. 



REAL ESTATE CONTRACTS. 5^ 

Varieties of Contracts. — Thete are other forms of contract for 
the sale and purchase of land, but they are of such an intricate 
character that even a very wise man who thinks he knows all about 
everything will feel that he had better get the aid of a man learned 
in the law upon one of that kind; for example, a man may agree 
with his wife that he will deed to her his farm, provided she will 
make her last will and testament in favor of all of their children; 
this is a contract which the Court will enforce, and if she makes a 
will in contravention of this the Court will set it aside; another 
variety is that of a building contract, where land is sold with an 
a^eement by the buyer to build and by the seller to lend the buyer 
money on bond and mortgage upon the same land and house. It is 
thought best not to go into discussion of such contracts in this 
monograph. 

Finally.— And, finally, do not either give or take a deed of prop- 
erty until every encumbrance is removed, every little detail of the 
contract is carried out; if you do, delay in its performance, vexa- 
tion and trouble will come upon you, and often an expensive law- 
suit. And law is war. Both sides lose money in a lawsuit; always 
willing and eager to set a lawyer at work using up his strength and 
brains to accomplish their views, but almost always paying him 
grudgingly, and thinking if he wins that he should look to the losing 
side for his pay (which the law does not allow), or not charge much 
for his work, however hard, because his client has had delay and 
loss; or, if he loses, that he should not look for any pay at all, 
although he may have worked still harder; not appreciating that 
it is the clients who desire or cause the fight, and that litigation, 
which is contention, conflict, quarrel (from the old High German 
werra), war, is destructive to property at least, if not to life. If, 
however, such a conflict be forced upon you, if wise you will not 
try to protect yourself with a five-dollar shotgun and cheap ammuni- 
tion, but will provide yourself with the best equipped armament 
you can afford; pay an active, studious lawyer well, and be benefited 
by his willing aid. 

Many topics and points upon the law of real estate other than 
those in the foregoing pages have suggested themselves, but as they 
do not belong to the subject of a contract of sale they are not 
touched upon. If this be found sufficiently interesting to demand 
a future edition, the author will be glad to include therein answers 
to aU pertinent questions which he may receive, and which he 
invites. 

[Apportionment of Rents.— Note.— A New York statute of 1875 
was in December, 1881, interpreted to have altered the rule as stated on page 
45, and to require apportionment up to date of passing title, but the correct- 
ness of that interpretation is doubted, as that statute is deemed to have been 
intended to apply to cases where title to property changes involuntarily, as 
by death, and not by contract; the safe way is to put an explicit agreement 
in the contract.] 



63 REAL ESTATE CONTRACTS. 

A FOKM OF CAEEFUL CONTEACT. 

(Correct amounts omitted for obvious reasons.) 

In consideration of the sum of one dollar to each by the other in hand paid 
it is hereby agreed between William L. Andrews, of the city of New York, 
of the first part and The J. L. Mott Iron Works, a corporation existing 
under the laws of the State of New York, of the second part, as fol- 
lows, viz.: 

The party of the second part hereby agrees to purchase from the devisees 
of Loring Andrews, deceased, all that certain piece or parcel of land, with 
the buildings thereon, in the city of New York, known as Nos. 84, 86, 88 
and 90 Beekman street, known as the St, George Buildings, and the area on 
the west betweeen said buildings and the property of Tathara Brothers, so 
far as the said devisees have a right to convey the same, containing in front 
on Beekman street about one hundred and thirteen (113) feet, eight (8) inches, 
in the rear about one hundred and twenty-five (125) feet, eleven (11) inches, 
on the easterly side on Cliff street about one hundred and thirty-three (133) 
feet, five (5) inches, and on the westerly about one hundred and twenty-two 
(122) feet, eleven (11) inches, being the entire property known as the St. 
George BuUdings^ for the price of three hundred and fifty dollars, to be 
paid as follows: One hundred and ten dollars in cash on deUvery of the 
deed as hereinafter mentioned, and two hundred and forty dollars by the 
purchase money bond and mortgage of said party of the second part, on 
said premises at 5 per cent, per annum interest payable semi-annually, the 
principal to be payable on or before the expiration of ten years, in annual 
instalments of not less than twenty-five dollars each, or in multiples of five 
dollars in excess of that amount at the option of the party of the second 
part, on ninety days notice in writing; said mortgage to contain the usual 
tax, interest and insurance clauses. And if the party of the first part so 
elects it may be divided into several mortgages of such amounts as shall be 
most convenient for distribution among the aforesaid devisees, according to 
their respective interests. 

The premises are to be conveyed by a good title in fee simple, free and 
clear of all encumbrances except the existing leases thereon ; and the agree- 
ment now in force to furnish power from the engine in said building to the 
premises Nos. 61, 63 and 65 Cliff street, and also subject to all such rights 
and privileges of light and air and all such rights and privileges in, over 
and upon a part of said premises as were granted and conveyed by William 
E. Dodge and others to WUliam P. Tatham in and by a certain agreement 
or instrument bearing date the 30th day of June, 1860. The party of the 
first part and the said devisees or any of them shall not reserve any right 
of way under said agreement of 30th June, 1860, for their adjoining Cliff 
street property. 

The deed of conveyance as to six undivided sevenths of said premises is 
to be a full covenant warranty deed, subject as aforesaid ; and as to one 
undivided seventh part thereof is to be a trustee's deed in the usual form. 
The said William L. Andrews agrees to use his best endeavors to procure 
the execution of said deeds at as early a date, not later than May 1st, 1880, 
as practicable; but it is expressly agreed and understood in case of the 
failure or refusal of any of the tenants in common with said WUliam L. 
Andrews to execute said deed, that in such case the said William L. 
Andrews shall not be held personally liable or responsible for such failure 



REAL ESTATE CONTRACTS. , 58 

or refusal, but that then and in such case this agreement shall become and 
be null and void, and neither party shall have any claim against the other 
for damages by reason of the non-fulfilment hereof through such failure or 
refusal to execute such deed. 

It is understood that the present owners of said real estate are the said 
William L. Andrews, James B. Andrews, Constant A. Andrews, Loring 
Andrews, Walter S. Ajidrews and Clarence Andrews, as devisees under the 
will of the late Loring Andrews, deceased, and Daniel Morison, as trustee 
of the separate estate of Isabel Von Linden, the said Isabel Von Linden 
being also a devisee under said will; and that the said Constant A. 
Andrews, Walter Scott Andrews and Isabel Von Linden have heretofore 
authorized, in writing, the said William L. Andrews to accept for them a 
certain price for the property, and that this agreement is executed under 
such an understandii^. The said Constant A. Andrews and the said Daniel 
Morison as trustee as aforesaid, execute this agreement for the purpose of 
ratifying and confirming the said sale as far as respects their respective 
interests in said premises. 

The deed of said premises is to be delivered and the consideration paid at 
the oflSce of the counsel of the party of the second part, Mr. Geo. W. Van 
Siclen, No. 146 Broadway, New York City, on the first day of May, 1880, 
at 12 o'clock noon. The bond and mortgage hereinbefore referred to is to 
be drawn by De Forest & Weeks, Esqs., the counsel of the vendors, and 
the expense of drawing and recording the same is to be paid by the vendee. 
Witness the hands and seals of the parties the eighteenth day of Feb- 
ruary, one thousand eight hundred and eighty. 

The J. L. Mott Iron Works, by 

Jordan L. Mott, President. [l. s.] 
Wm. L. Andrews, [l. s.] 

Constant A. Andrews, [l. s.] 

D. Morison, Trustee. [l. s.] 



Whereas, since the execution of the annexed contract, Loring Andrews, 
owner of one undivided seventh of said premises, Nos. 84 to 90 Beekman 
street, has died, and The J. L. Mott Iron Works, the party of the second 
part thereto, has agreed to accept from the owners thereof a conveyance of 
six undivided sevenths of said premises, and to pay the sum of three hundi*ed 
dollars therefor, 

And, whereas, the said The J. L. Mott Iron Works is desirous of obtain- 
ing the ownership of the remaining one-seventh part of said premises whereof 
the said Loring Andrews died seized, as soon as a good title thereto can be 
made and said interest conveyed, and is willing to pay therefor the sum of 
fifty dollars in cash. 

And, whereas, in order to obtain such conveyance it may become 
neccessary to take proceedings by action or otherwise to that end, and the 
said The J, L. Mott Iron Works is desirous of being protected against any 
cost or expenses in excess of said fiLfty doUars, 

Now, therefore, this agreement witnesseth that in consideration of the 
premises the parties to said agreement have mutually agreed as follows: 

That the sum of five dollars be deposited in the United States Trust Com- 
pany, of the City of New York, payable to the joint order of Mr. Francis 
H. Weeks and Mr. George W. Van Siclen, the attorneys of the respective 
parties hereto, such deposit to be held for the purpose of indemnifying the 
said The J. L. Mott Iron Works against axiy damages, costs, expenses or 



64 REAL ESTATE CONTRACTS. 

payments in excess of fifty dollars which it may be compelled to pay in order 
to procm-e the conveyance of said one-seventh interest in said premises of 
which the said Loring Andrews, Jr., died seized, provided, however, that 
the one-seventh part of the net rents of said premises accruing from and after 
the 1st day of April, 1880, and payable to the estate of said Loring Andrews, 
Jr., deceased, is not to be reckoned as forming a part of the sum paid for the 
purchase or conveyance of said one-seventh interest, said sum of five dollars 
to be applied whenever the said one-seventh interest has become vested in 
the said The J. L. Mott Iron "Works, first, to reimbursing to it any payments 
made by it in excess of said sum of fifty doUars in the procuring the convey- 
ance of said interest; and, secondly, the surplus, if any, remaining after 
audi application to be paid over to the said Francis H. Weeks, Esq. , as the 
attorney for the estate of the said Loring Andrews. 

And it is further covenanted and agreed that the rental to be paid by the 
said The J. L. Mott Iron Works for said one undivided one-seventh to the 
heirs or devisees of said Loring Andrews, Jr., deceased, shall be 5 per cent, 
upon fifty dollars from and after April 1st, 1880. 

De Forest & Weeks, [l. s.] 

Attorneys for Vendors. 
The J. L. Mott Iron Works, by 

Geo. W. Van Siclen, [l. s.] 

Attorney. 



SIMPLE FORM OF CONTRACT. 

These Articles of Agreement made the fifteenth day of October, 
in the year one thousand eight hundred and eighty-five, between George 
fl. Wallace, of the City, County and State of New York, party of the first 
part, and John A. Dermody, of the City of Brooklyn, County of Kings and 
State of New York, party of the second part, witnesseth: 

The said party of the first part, in consideration of the sum of one 
thousand dollars to him duly paid, the receipt whereof is hereby acknowl- 
edged, hereby agrees to sell unto the said party of the second part, aU that 
certain lot, piece or parcel of land, with the buildings thereon, situate in the 
Sixteenth Ward of the City of Brooklyn, and known as No. 45 Eighteenth 
street, and bounded and described as follows: Beginning on the northerly 
ade of Eighteenth street, one hundred (100) feet westerly from the north- 
west corner of Eighteenth street and Eighth avenue, and running thence 
northerly and parallel to the avenue and part way through a party wall 
one hundred (100) feet, thence westerly and parallel to Eighteenth street 
twenty-two (32) feet, thence southerly and parallel to Eighth avenue and 
part way through a party wall one hundred (100) feet to Eighteenth street, 
and thence easterly along Eighteenth street twenty-two «^33) feet to the point 
or place of beginning, tojrether rrith all sJiadat «o ilid v7mdow& ana 3.I20 Zrtc 
refrigerator noTv m the house on said premises, for the consideration of twenty 
thousand dollars to be paid by the party of the second part in the manner 
and at the times hereinafter stated. ^^^ And the said party of the second part 
hereby agrees to purchase said premises at the said consideration of twenty 
thousand dollars, and to pay the same as follows: Nine thousand doUars 
upon the fifteenth day of November, 1885, when the deed is to be delivered; 



REAL ESTATE CONTRACTS. 55 

five thousand dollars in the mortgage held by the Broadway Savings Insti- 
tution, now a lien on said premises, and which mortgage the party of the 
second part hereto shaU assume and agree to pay as part of the aforesaid 
consideration ; five thousand dollars in the purchase money bond and mort- 
gage of the party of the second pai-t upon the aforesaid premises, to bear 
date November 15th, 1885, and to contain a twenty -day interest clause, a 
ninety-day tax and assessment clause, and the usual insurance clause, 
together with the usual receiver's and warranty clauses ; and one thousand 
dollars in the aforesaid sum paid as the consideration for this contract, 
which shall be allowed upon the consideration for said deed upon completion 
hereof by the party of the second part 

And the said party of the first part, on receiving such payments at the 
time and in the manner above mentioned, shall, at his own proper cost and 
expenses, execute, acknowledge and deliver to said party of the second part, 
or to his assigns, a proper deed containing a general warranty and the 
usual full covenants for the conveying and assuring to him or them, the fee 
simple of the said premises, free from aU encumbrance, except the afore- 
said mortgage of five thousand dollars now a lien on said premises, and 
except also an existing covenant against erection of buildings upon the front 
portion of said lot, and which deed shall be delivered on the fifteenth day of 
November, 1885, at twelve o'clock M., at the office of Mr. Greo. W. VanSiclen, 
No. 146 Broadway, in the City of New York. The risk of loss or damage by 
fire prior to the completion of this contract is hereby assumed by the party 
of the first part. The rents of the said premises shall be apportioned and 
allowed up to the day of taking title. 

And it is hereby further agreed that in case either party hereto shall 
fail or refuse to carry out this contract or any part thereof by him to be 
perfonned, the party so failing shall and will pay to the other party, his 
executors, administrators or assigns, the sum of five hundred dollars, which 
sum is hereby declared fixed and agreed upon as the liquidated damages 
to be paid by the party so failing for his non-performance. 

And the party of the first part hereby agrees to furnish the party of the 
second part on or before the 17th day of October, 1885, with an abstract 
of title of said premises and the searches appended thereto down to April 
9th, 1879, when he purchased the same, or to pay towards the cost of an 
abstract and searches one hundred dollars. 

And it is understood that the stipulations aforesaid are to apply to 
and bind the heirs, executors, administrators and assigns of the respective 
parties. 

In Witness Whereof, the parties to these presents have hereunto set 
their hands and seals, the day and year first above written. 

Geo. H. Wallace. [l. s.] 
John A. Dermody. [l. s.] 
State of New York } „„. 

City and County of New York \ ^^' 

On this fifteenth day of October, one thousand eight hundred and eighty- 
five, before me personally came George H. Wallace and John A. Dermody, 
to me known, and known to me to be the individuals described m and who 
executed the foregoing instrument, and they thereupon duly acknowledged 
to me that they had executed the same. 

A. Fred. Silverstone, 

Notary Public, New York County. 



56 REAL ESTATE CONTRACTS. 

A GOOD FORM FOR EXCHANGE. 

Agreement made and entered into the fourteenth day of November in the 
year one thousand eight hundred and eighty-five, between John Doe, of the 
town of Flushing, County of Queens and State of New York, party of the 
first part, and Richard Roe, of the City, County and State of New York, 
party of the second part, in manner following: The said party of the first 
part, in consideration of ten dollars duly paid by the party of the second 
part, the receipt whereof is hereby acknowledged, and also in consideration 
of the conveyance of the property hereinafter mentioned, belonging to the 
said party of the second part, doth hereby agree on his part, to give and 
grant unto the said party of the second part all that parcel of land situate, 
lying and being in said town of Flushing, lying on the westerly side of the 
highway between Flushing and Bayside, known as the Vleigh farm, bound- 
ed by land of George Parks on the north and by land of James Merritt on 
the south, containing forty acres more or less, together with the buildings 
and appurtenances, as the said premises are more fully described in the deed 
of the same from Arthur Powell and wife to the party of the ^st part 
hereto, dated July 8th, 1879, and recorded in Queens County Clerk's ofiBce. 

And the said party of the second part, in consideration of the sum of ten 
dollars didy paid by the party of the first part to the socond part, the 
receipt whereof is hereby acknowledged and also of the conveyance of the 
property and the consideration fir?t above mentioned in exchange, and for 
the further consideration of eight thousand dollars in cash to be paid by the 
party of the first part at the time of the delivery of the deeds hereinafter 
mentioned, doth likewise agree on his part, to give and grant unto the said 
party of the first part all that lot, piece or parcel of land with the buildings 
thereon, situate in the Ninth Ward of the City of New York, known as No. 
1046 Charles st, beginning on the northerly side of Charles street, etc., etc. 

The parties to these presents mutually agree to execute, acknowledge and 
deliver, each to the other, or to their assigns, and at their own proper cost 
and expense, a proper deed or deeds for the conveying and assuring, each to 
the other, the fee simple of the property of each, above described, free from 
all encumbrances, of any name or nature whatever, except that the property 
on Charles street. New York City, is subject to a mortgage of $6,000 which 
the said John Doe shall assume and agree to pay, and which deeds shall be 
delivered and exchanged on the 14th day December, 1886, at 12 o'clock noon, 
at the oflQce of Mr. Geo. W. Van Siclen, No. 146 Broadway, New York City. 
Each party hereto shall assume the risk of loss or damage by fire to his own 
premises hereby agreed to be exchanged by him, prior to the completion of 
this conti'act. Fifteen days' rent of the Charles street property, viz, : one 
hundred and twenty dollars, shall be allowed to the party of the first part 
for the balance of the month of November, 1885. And it is hereby further 
agreed that in case either party hereto shall fail to carry out his part of this 
agreement the party so failing shall pay to the other party the sum of 
three hundred dollars as and for liquidated damages for such failure. 
And each party hereto respectively agrees to forthwith deliver to the other 
his abstract of title and official searches that he obtained at the time he 
became owner of his said premises. 

And it is understood that the stipulations aforesaid are to apply to and 
bind the heirs, executors, administrators and assigns of the respective 
parties. In witness whereof, etc. 

CAcknowledgments]. 



inSTIDE 



PAGE 

Abstract 7 

Administrators and heirs bound 50 

After contract signed. Premises 

damaged 44 

Agent's fraud, damages against seller 37 

Agency, Assumed 21 

Agent's oral authority 21 

Agent's signature 21 

"Agrees to sell," not "Sells" 43 

Allowance for deficiency in quantity . 25 

Alteration 39 

Apportionment of rents (Note) 51 

Assignee of contract 20 

Assignment of contract 50 

Assumed agency 21 

Assumption of interest not assump- 
tion of principal 46 

Assumption of mortgage 45 

Assurance, Covenant of further 38 

Auctioneer 21 

Authority, Oral, of agent 21 

Bargain and sale deed 31 

BiU 7 

Boundaries, Pointing out 25 

Breach of contract, damages 37 

Buyer carmot dispute encumbrances. 42 

Buyer cannot get back ' ' earnest " . . 36 

Buyer's lien 36 

Buyer must agree to buy 26 

Buyer not a tenant 36 

By-bidding 21 

Cancellation of contract 19 

Cancellation of deed 19 

Consideration 23 

Contract by letter 18 

Contract, Damages for breach of . . .. 37 

Contract may exist after deed 43 

Contract must be written 18 

Contract, Oral, when good 18 

Contract, Recording 35 

Contracts, Short 47 

Contract sometimes mortgage 43 

Contract, what it is 18 

Copy of abstract 7 

Corporation mortgage 46 

Corporation signature 47 

Corporation, Signature by trustee of 22 

Covenant against encumbrances 32 

Covenant for quiet enjoyment 32 

Covenant of further assurance 32 

Covenant of right to convey 31 

Covenant of seisin 31 

Covenant of warranty. 32 

Curtesy 23 

Damage to premises after contract 

~" signed 44 



PAGE 

Damages against seller, agent's fraud 37 

Damages for breaking contract 37 

Damages liquidated 38 

Damages, Seller's 37 

Date 19 

Deed 30 

Deed, Bargain and sale 31 

Deed, Executor's 31 

Deed, Full covenant warrantee 31 

Deed, not contract, gives title 33 

Deed, Quit claim 31 

Deed, Tender of 33 

Deficiency in quantity. Allowance for 25 

Dehvery of possession 50 

Description. , 24, 26 

Destroying deed does not put title 

back 19 

Division fences 30 

Dower 23 

Dower, Inchoate 32 

Dower, none in contract 19 

Earnest money cannot be recovered 36 

Encumbrances 42 

Enctunbrances, Buyer cannot dis- 
pute 42 

Encumbrances, Covenant against. . . 32 

Escrow 19 

Examine title 4 

Exchange of premises 49 

Executor's deed 31 

Existence of contract after deed — 43 

Fees 5 

Fences, Division 30 

Finally 51 

Fixtures 40 

Form of contract 52 

Fraud by agent, damages against 

seUer 37 

Fraud, purchaser's remedies 39 

Fraud, Reformation for 39 

Full covenant warrantee deed 31 

Further assurance. Covenant of 32 

Good title implied 40 

Heirs and administrators bound 50 

Husband to join 22 

Imphed, Good title 40 

Implied warranty. None but of title. 42 

Inchoate right of dower 32 

Infant seller 19 

Insurable interest 45 

Interest on purchase money mort- 
gage 44 

Interest on the price 45 

Iron-clad mortgage 46 

Judgments 7 

Land, what it means 25 



u 



INDEX. 



PAGE 

47 

Letters may make contract 18 

Lien of buyer 36 

Lien of vendor . . 36 

Liquidated damages 38 

Lunatic ■ 21 

Mistake, Reformation for 39 

Mortgage assumed 45 

Mortgage by corporation buying ... 46 
Mortgage, Contract sometimes is ... . 43 
Mortgage, Interest on purchase 

money 44 

Mortgage, Iron-clad 46 

Mortgage, Purchase money 46 

Mortgage with full agreements 46 

Mortgages 45 

Multiplication of fees 5 

No implied warranty except title — 48 
Notice from possession of premises. 29 

Oral authority of agent 21 

Oral contract, when good 18 

" Oral " not " verbal " 46 

Owner, Pretended 22 

Owner, Real 44 

Parties 19 

Party a lunatic 21 

Party walls 30 

Passing of title, When 33 

Payment 44 

Performance, Specific 39 

Performance, Specific, Title 40 

Performance, Time of 32 

Pointing out boimdaries 25 

Possession 29 

Possession, Delivery of 50 

Possession of premises is notice — 29 

Possession of wild land 29 

Premises damaged after contract 

signed 44 

Pretended owner 22 

Purchase money mortgage 46 

Purchase money mortgage. Interest 

on 44 

Purchaser not a tenant 50 

Purchaser ■'s remedies for fraud 39 

Quantity, Allowance for deficiency in 25 

Quiet enjoyment. Covenant of 32 

Quit claim deed 31 

Real owner 44 

Recording contract 35 

Referee must pay taxes 20 

Referees 20 

Reform aOO years ago 15 

Reformation for fraud or mistake ... 39 
Remedies of purchaser for fraud .... 39 



PAGE 

Rents 45 

Rents, Apportionment of (Note) 51 

Repairs ^ 

Rescission 38 

Right system of recording 10 

Right to convey, Covenant of . 31 

Seal 33 

Seisin, Covenant of 31 

Seller, Damages against, for agent's 

fraud 37 

Seller's damages 37 

Seller's lien 36 

Short contracts of sale 47 

Signature by agent 21 

Signature by corporation 47 

Signature by trustee 22 

Signature by trustee of corporation. 22 

Signatures 35 

Specific performance 39 

Specific performance. Title 40 

Subscribing witness 33 

System of recording 8 

Take time 3 

Taxes 29 

Tax search 8 

Tenant, Buyer not one 36 

Tender of deed 33 

Time 44 

Time of Performance 32 

Thirty days time 17 

Title 30 

Title, Deed, not contract, gives. 33 

Title good, Implied 40 

Title passes, When 33 

Title reform 200 years ago 15 

Title, Specific performance 40 

To bind heirs and administrators 50 

Trustee of corporation. Signature by 22 

Trustee's signature 22 

Varieties of contract 5r» 

Vendor's lien. . . . , 36 

"Verbal,"" "Oral"..... 46 

Walls, Party 30 

Warrantee deed 31 

Warranty, Covenant of 32 

Warranty, None implied except title 42 

What a contract is 18 

When oral contract good 18 

When title passes 33 

Wife no dower in contract 19 

Wild land, Possession of 29 

Will 47 

Witness, Subscribing 33 

Written contract 18 

Wrong system of recording S 



THE REAL PROPERTY LAW. 



AN ACT 

Relating to real property, constituting chapter 
forty-six of the general laws. 



The People of the State of New York^ represented in Senate 
and Assembly^ do enact as follows : 

CHAPTER XLVI OF THE GENERAL LAWS. 

The Real Property Law. 

Article 1. Tenure of real property. (§§ 1-9.) 

2. Creation and division of estates. (§§ 20-56.) 

3. Uses and trusts. (§§ 70-93.) 

4. Powers. (§§ 110-163.) 

5. Dower. (§§ 170-187.) 

6. Landlord and tenant. (§§ 190-202.) 

7. Conveyances and mortgages. (§§ 205-234.) 

8. Recording instruments affecting real property. (§§ 240- 

277.) 

9. Descent of real property. (§§ 280-296.) 

10. Laws repealed; when to take effect. (§§300-301.) 

ARTICLE I. 
TENURE OF REAL PROPERTY. 

Section 1. Short title; definitions; effect. 

2. Capacity to hold real property. 

3. Capacity to transfer real property. 

4. Deposition of resident alien. 

5. When and how alien may acquire and transfer real 

property. 

6. Effect of marriage with alien. 

7. Title through alien. 

8. Liabilities of alien holders of real property. 

9. Heirs of patriotic Indian. 



60 THE REAL PROPERTY LAW. 

§ 1. Short title; definitions; effect 

This chapter shall be known as the real property law. The 
terms "real property" and "lands" as used in this chapter are 
coextensive in meaning with lands, tenements and heredita- 
ments. This chapter does not alter or impair any vested estate, 
interest or right, nor alter or affect the construction of any 
conveyance, will or other instrument which has taken effect at 
any time before this chapter becomes a law. 
§ 2. Capacity to hold real property. 

A citizen of the United States is capable of holding real prop- 
erty within this state, and of taking the same by descent, devise 
or purchase. 
§ 3. Capacity to transfer real property. 

A person other than a minor, an idiot, or person of unsound 
mind, seized of or entitled to an estate or interest in real prop- 
erty, may transfer such estate or interest. 
§ 4. Deposition of resident alien. 

An alien who, pursuant to the laws of the United States, has 
declared his intention of becoming a citizen, and who is, and 
intends to remain, a resident thereof, may make a written depo- 
sition to such facts, before any officer authorized to take the 
acknowledgment or proof of deeds to entitle them to be re- 
corded within the state. Such deposition must be certified by 
the officer before whom it is made, and may be filed in the office 
of the secretary of state and when so filed, must be recorded by 
him in a book kept for that purpose. 

Such deposition shall be presumptive evidence of the facts 
therein contained. 

§ 5. When and how alien may acquire and transfer real prop- 
erty. 
An alien may, for a term of six years after filing the depo- 
sition described in the last preceding section, take, hold, convey 
and devise real property. If such deposition be filed, or such 
alien be admitted to citizenship, a grant, devise, contract or 
mortgage theretofore made to or by him is as valid and effectual 
as if made thereafter; provided, however, that a devise to an 
alien shall not be valid unless a deposition be filed by him, or 
he be admitted to citizenship, within one year after the death of 
the testator, or if the devisee is a minor, within one year after 
his majority. If a person who has filed such a deposition dies 
within six years thereafter, and before he is admitted to citizen- 
ship, his widow is entitled to dower in his real property, and if 
he dies Intestate, his heirs or the persons who would otherwise 
answer to the description of heirs, inherit his real property, upon 
such persons being admitted to citizenship, or filing a deposition 



THE REAL PROPERTY LAW. 61 

in their own belialf, within one year after such death, or if 
minors, within one year after their majority. If an action or 
proceeding is commenced by the state to recover real property 
held by an alien, such action or proceeding shall be suspended 
upon the filing of such deposition, and the service of a certified 
copy thereof upon the attorney-general, and the payment of the 
costs to the time of such service. 
§ 6. Effect of marriage with alien. 

A woman who, being a citizen of the United States, marries 
an alien not entitled to hold real property in this state, may, 
notwithstanding such marriage, take by grant, will or descent, 
and hold, convey and devise real property within this state; and 
the descendants of such a woman who dies intestate, inherit her 
real property within this state, and any real property which she 
would have been entitled to take, by descent, if living; and such 
descendants may take real property by grant or devise from 
their mother or from any citizen to whom she would be an heir, 
may hold real property acquired under this section, and may 
convey and devise it to any person capable of holding the same. 
§ 7. Title through alien. 

The right, title or interest in or to real property in this state of 
any person entitled to hold the same can not be questioned or 
impeached by reason of the alienage of any person through 
whom such title may have been derived. Nothing in this sec- 
tion affects or impairs the right of any heir, devisee, mortgagee, 
or creditor by judgment or otherwise. 
§ 8. Liabilities of alien holders of real property. 

Every alien holding real property in this state is subject to 
duties, assessments, taxes and burdens as if he were a citizen of 
the state. 
§ 9. Heirs of patriotic Indian. 

The heirs of an Indian to whom real property was granted for 
military services rendered during the war of the revolution may 
take and hold such real property by descent as if they were citi- 
zens of the state at the time of the death of their ancestors. A 
conveyance of such real property to a citizen of this state, exe- 
cuted by such Indian or his heirs after March seventh, eighteen 
hundred and nine, is valid, if executed with the approval of the 
surveyor-general or state engineer and surveyor, indorsed there- 
upon. 



ARTICLE II. 
CREATION AND DIVISION OF ESTATES. 

Section 20. Enumeration of estates. 

21. Estate in fee simple and fee simple absolute. 

22. Estates tail abolished; remainders thereon. 

23. Freeholds; chattels real; chattel interests. 

24. When estate for life of third person is freehold; 

when chattel real. 

25. Estates in possession and expectancy. 

26. Enumeration of estates in expectancy. 

27. Definition of future estates. 

28. Definition of remainder. 

29. Definition of reversion. 

30. When future estates are vested; when contingent. 

31. Power of appointment not to prevent vesting. 

32. Suspension of power of alienation. 

33. Limitation of successive estates for life. 

34. Remainders on estates for life of third person. 

35. When remainder to take effect if estate be for lives 

of more than two persons. 

36. Contingent remainder on term of years. 

37. Estate for life as remainder on term of years. 

38. Meaning of heirs and issue in certain remainders. 

39. Limitations of chattels real. 

40. Creation of future and contingent estates. 

41. Future estates in the alternative. 

42. Future estates valid though contingency improbable. 

43. Conditional limitations. 

44. When heirs of life tenants take as purchasers. 

45. When remainder not limited on contingency de- 

feating precedent estate takes effect. 

46. Posthumous children. 

47. When expectant estates are defeated. 

48. Effect on valid remainders of determination of 

precedent estate before contingency. 

49. Qualities of expectant estates. 

50. Dispositions of rents and profits. 

51. Accumulations. 

52. Anticipation of directed accumulation. 

53. Undisposed of profits. 

54. When expectant estates are deemed created. 

55. Estates in severalty, joint tenancy and in common. 

56. When estate in common; when in joint tenancy. 



THE REAL PROPERTY LAW. 63 

§ 20. Enumeration of estates. 

Estates In real property are divided into estates of inheritance, 
estates for life, estates for years, estates at will, and by suf- 
ferance. 

§ 21. Estates in fee simple and fee simple absolute. 

An estate of inheritance continues to be termed a fee simple, 
or fee, and, when not defeasible or conditional, a fee simple 
absolute, or an absolute fee. 

§ 22. Estates tail abolished; remainders thereon. 

Estates tail have been abolished; and every estate which 
would be adjudged a fee tail, according to the law of this state, 
as it existed before the twelfth day of July, seventeen hundred 
and eighty-two, shall be deemed a fee simple; and if no valid 
remainder be limited thereon, a fee simple absolute. Where a 
remainder In fee shall be limited on any estate which would be 
a fee tail, according to the law of this state, as it existed pre- 
vious to such date, such remainder shall be valid, as a contin- 
gent limitation on a fee. and shall vest in possession on the 
death of the first taker, without issue living at the time of such 
death. 

§ 23. Freeholds; chattels real; chattel interests. 

Estates of inheritance and for life shall continue to be termed 
estates of freehold; estates for years are chattels real; and es- 
tates at will or by sufferance continue to be chattel interests, 
but not liable as such to sale on execution. 

§ 24. When estate for life of third person Is freehold, when 
chattel real. 

An estate for the life of a third person, whether limited to 
heirs or otherwise, shall be deemed a freehold only during the 
life of the grantee or devisee; after his death it shall be deemed 
a chattel real. 

§ 25. Estates in possession and expectancy. 

Estates, as respects the time of their enjoyment, are divided 
into estates in possession, and estates in expectancy. An estate 
which entitles the owner to immediate possession of the prop- 
erty, is an estate in possession. An estate, in which the right 
of possession is postponed to a future time, is an estate in ex- 
pectancy. 

§ 26. Enumeration of estates in expectancy. 

All expectant estates, except such as are enumerated and de- 
fined in this article, have been abolished. Estates in expectancy 
are divided into, 

5 



04 THB REAL PROPERTY LAW. 

1. Future estates; and 

2. Reversions. 

8 27. Definition of future estates. 
A future estate, is an estate limited to commence in possession 

at a future day, either without the intervention of a precedent 

estate, or on the determination, by lapse of time or otherwise, 

of a precedent estate created at the same time. 

§ 28. Definition, remainder. 
When a future estate is dependent on a precedent estate, it 

may be termed a remainder, and may be created and transferred 

by that name. 

§ 29. Definition, reversion. 
A reversion is the residue of an estate left in the grantor or 

his heirs, or in the heirs of a testator, commencing in possession 

on the determination of a particular estate granted or devised. 

R 30. When future estates are vested; when contingent. 
A future estate is either vested or contingent. It is vested, 

when there is a person in being, who would have an immediate 

right to the possession of the property, on the determination of 

all the intermediate or precedent estates. It is contingent while 

the person to whom or the event on which it is limited to take 

effect remains uncertain. 

8 31. Power of appointment not to prevent vesting. 

The existence of an unexecuted power of appointment does 
not prevent the vesting of a future estate, limited in default of 
the execution of the power. 
8 32. Suspension of power of alienation. 

The absolute power of alienation is suspended, when there are 
no persons in being by whom an absolute fee in possession can 
be conveyed. Every future estate shall be void in its creation, 
which shall suspend the absolute power of alienation, by any 
limitation or condition whatever, for a longer period than during 
the continuance of not more than two lives in being at the crea- 
tion of the estate; except that a contingent remainder in fee 
may be created on a prior remainder in fee, to take effect in the 
event that the persons to whom the first remainder is limited, 
die under the age of twenty-one years, or on any other contin- 
gency by which the estate of such persons may be determined 
before they attain full age. For the purposes of this section a 
minority is deemed a part of a life and not an absolute term 
equal to the possible duration of such minority. 
R 33. Limitation of successive estates for life. 
Successive estates for life shall not be limited, except to per- 



THE REAL PROPERTY LAW. 65 

sons in being at the creation thereof; and where a remainder 
shall be limited on more than two successive estates for life, all 
the life estates subsequent to those of the two persons first en- 
titled thereto, shall be void, and on the death of those persons, 
the remainder shall take effect, in the same manner as if no 
other life estates had been created. 
§ 34. Remainders on estates for life of third person. 

A remainder shall not be created on an estate for the life of 
any other person than the grantee or devisee of such estate, un- 
less such remainder be in fee; nor shall a remainder be created 
on such an estate in a term of years, unless it be for the whole 
residue of such term. 

§ 35. When remainders to take effect if estate be for lives of 
more than two persons. 

When a remainder is created on any such life estate, and more 
than two persons are named as the persons during whose lives 
the life estate shall continue, the remainder shall take effect on 
the death of the two persons first named, as if no other lives had 
been introduced. , ,; 

§ 36. Contingent remainder on term of years. 

A contingent remainder shall not be created on a term of 
years, unless the nature of the contingency on which it is lim- 
ited be such that the remainder must vest in interest, during the 
continuance of not more than two lives in being at the creation 
of such remainder, or on the termination thereof. 
§ 37. Estate for life as remainder on term of years. 

No estate for life shall be limited as a remainder on a term of 
years, except to a person in being at the creation of such estate. 
§ 38. Meaning of heirs and issue in certain remainders. 

Where a remainder shall be limited to take effect on the death 
of any person without heirs, or heirs of his body, or without 
issue, the words "heirs" or "issue," shall be construed to mean 
heirs or issue, living at the death of the person named as an- 
cestor. 
§ 39. Limitations of chattels real. 

All the provisions contained in this article, relative to future 
estates, apply to limitations of chattels real, as well as of free- 
hold estates, so that the absolute ownership of a term of years 
shall not be suspended for a longer period than the absolute 
power of alienation can be suspended in respect to a fee. 
§ 40. Creation of future and contingent estates. 

Subject to the provisions of this article, a freehold estate as 
well as a chattel real may be created to commence at a future 
day; an estate for life may be created in a term of years, and a 



66 THE REAL PROPERTY LAW. 

remainder limited thereon; a remainder of a freehold or chattel 

real, either contingent or vested, may be created expectant on 

the determination of a term of years; and a fee or other less 

estate, may be limited on a fee, on a contingency which, if it 

should occur, must happen within the period prescribed in this 

article. 

§ 41. Future estates in the alternative. 

Two or more future estates may be created to take effect in 
the alternative, so that if the first in order fails to vest, the next 
in succession shall be substituted for it, and take effect accord- 
ingly. 
§ 42. Future estate valid though contingency improbable. 

A future estate, otherwise valid, shall not be void on the 
ground of the improbability of the contingency on which it is 
limited to take effect. 

§ 43. Conditional limitations. 

A remainder may be limited on a contingency, which, if it 
happens, will operate to abridge or determine the precedent es- 
tate ; and every such remainder shall be a conditional limitation. 
§ 44. When heirs of life tenant take as purchasers. 

Where a remainder shall be limited to the heirs, or heirs of 
the body, of a person to whom a life estate in the same premises 
is given, the persons who, on the termination of the life estate, 
are the heirs, or heirs of the body, of such tenant for life, shall 
take as purchasers, by virtue of the remainder so limited to 
them. 

§ 45. When remainder not limited on contingency defeating 
precedent estate, takes effect. 

When a remainder on an estate for life or for years is not lim- 
ited on the contingency defeating or avoiding such precedent es- 
tate, it shall be construed as intended to take effect, only on the 
death of the first taker, or the expiration by lapse of time of 
such term of years. 
§ 46. Posthumous children. 

Where a future estate is limited to heirs, or Issue, or children, 
posthumous children shall be entitled to take in the same man- 
ner as if living at the death of their parents; and a future es- 
tate, dependent on the contingency of the death of any person 
without heirs, or issue, or children, shall be defeated by the 
birth of a posthumous child of such person, capable of taking by 
descent. 
§ 47. When expectant estates are defeated. 

An expectant estate can not be defeated or barred by any 
transfer or other act of the owner of the intermediate or pre- 



THE REAL PROPERTY LAW. 67 

cedent estate, nor by any destruction of such precedent estate 
by disseizin, forfeiture, surrender, merger or otherwise; but an 
expectant estate may be defeated in any manner, or by any act 
or means which the party creating such estate, in the creation 
thereof, has provided for or authorized. An expectant estate 
thus liable to be defeated shall not, on that ground, be adjudged 
void in its creation. 

§ 48. Effect on valid remainders of determination of precedent 
estate before contingency. 
A remainder valid in its creation shall not be defeated by the 
determination of the precedent estate, before the happening of 
the contingency on which the remainder was limited to take ef- 
fect; should such contingency afterwards happen the remainder 
shall take effect in the same manner and to the same extent as 
if the precedent estate had continued to the same period. 

§ 49. Qualities of expectant estates. 

An expectant estate is descendible, devisable and alienable, in 
the same manner as an estate in possession. 

§ 50. Dispositions of rents and profits. 

A disposition of the rents and profits of real property to ac- 
crue and be received at any time subsequent to the execution of 
the instrument creating such disposition, shall be governed by 
the rules established in this article, for future estates in real 
property. 

§ 51. Accumulations. 

All directions for the accumulation of the rents and profits of 
real property, except such as are allowed by statute, shall be 
void. An accumulation of rents and profits of real property, for 
the benefit of one or more persons, may be directed by any will 
or deed sufficient to pass real property as follows: 

1. If such accumulation be directed to commence on the cre- 
ation of the estate out of which the rents and profits are to 
arise, it must be made for the benefit of one or more minors 
then in being, and terminate at or before the expiration of their 
minority. 

2. If such accumulation be directed to commence at any time 
subsequent to the creation of the estate out of which the rents 
and profits are to arise, it must commence within the time per- 
mitted, by the provisions of this article, for the vesting of future 
estates, and during the minority of the beneficiaries, and shall 
terminate at or before the expiration of such minority. 

3. If in either case such direction be for a longer term than 
during the minority of the beneficiaries it shall be void only as 
to the time beyond such minority. 



68 THE REAL PROPERTY LAW. 

§ 52. Anticipation of directed accumulation. 

Where such rents and profits are directed to be accumulated 
for the benefit of a minor entitled to the expectant estate, and 
such minor is destitute of other sufficient means of support and 
education, the supreme court, at a special term, or, if such ac- 
cumulation has been directed by will, the surrogate's court of 
the county in which such will has been admitted to probate, 
may, on the application of his general guardian, direct a suita- 
ble sum out of such rents and profits to be applied to his main- 
tenance or education. 

§ 53. Undisposed profits. 

When, in consequence of a valid limitation of an expectant 
estate, there is a suspension of the power of alienation, or of 
the ownership, during the continuance of which the rents and 
profits are undisposed of, and no valid direction for their ac- 
cumulation is given, such rents and profits shall belong to the 
persons presumptively entitled to the next eventual estate. 
§ 54. When expectant estates are deemed created. 

Where an expectant estate is created by grant, the delivery of 
the grant, and, where it is created by devise, the death of the 
testator, shall be deemed the time of the creation of the estate. 
§ 55. Estates in severalty, joint tenancy and in common. 

Estates in respect to the number and connection of their 
owners, are divided into estates in severalty, in joint tenancy 
and in common; the nature and properties of which respectively, 
shall continue to be such as are now established by law, except 
so far as the same may be modified by the provisions of this 
chapter. 
§ 56. When estate in common; when in join tenancy. 

Every estate granted or devised to two or more persons in 
their own right, shall be a tenancy in common, unless expressly 
declared to be in joint tenancy; but every estate vested in execu- 
tors or trustees as such, shall be held by them in joint tenancy. 
This section shall apply as well to estates already created or 
vested as to estates hereafter granted or devised. 



ARTICLE III. 
USES AND TRUSTS. 

Section 70. Executed uses existing. 

71. Certain uses and trusts abolished. 

72. When right to possession creates legal ownership. 

73. Trustees of passive trust not to take. 

74. Grant to one where consideration paid by another. 

75. Bona fide purchasers protected. 

76. Purposes for which express trusts may be created. 

77. Certain devises to be deemed powers. 

78. Surplus income of trust property liable to creditors. 

79. When an authorized trust is valid as a power. 

80. Trustee of express trust to have whole estate. 

81. Qualification of last section. 

82. Interest remaining in grantor of express trust. 

83. What trust interest may be aliened. 

84. Transferee of trust property protected. 

85. When trustee may convey trust property. 

86. When trustee may lease trust property. 

87. Notice to beneficiary where trust property is con- 

veyed, mortgaged or leased. 

88. Person paying money to trustee protected. 

89. When estate of trustee ceases. 

90. Termination of trusts for the benefit of creditors. 

91. Trust estate not to descend. 

92. Resignation or removal of trustee and appointment 

of successor. 

93. Grants and devises of real property for charitable 

purposes. 



70 THE REAL PROPERTY LAW. 

§ 70. Executed uses existing. 

Every estate which is now held as a use, executed under any 
former statute of the state, is confirmed as a legal estate. 

§ 71. Certain uses and trusts abolished. 

Uses and trusts concerning real property, except as authorized 
and modified by this article, have been abolished; every estate 
or interest in real property is deemed a legal right, cognizable 
as such in the courts, except as otherwise prescribed in this 
chapter. 

§ 72. When right to possession creates legal ownership. 

Every person, who, by virtue of any grant, assignment or de- 
vise, is entitled both to the actual possession of real property, 
and to the receipt of the rents and profits thereof, in law or 
equity, shall be deemed to have a legal estate therein, of the 
same quality and duration, and subject to the same conditions, 
as his beneficial interest; but this section does not divest the es- 
tate of the trustee in any trust existing on the first day of Jan- 
uary, eighteen hundred and thirty, where the title of such trus- 
tee is not merely nominal, but is connected with some power of 
actual disposition or management in relation to the real prop- 
erty which is the subject of the trust. 

§ 73. Trustee of passive trust not to take. 

Every disposition of real property, whether by deed or by devise, 
shall be made directly to the person in whom the right to the pos- 
session and profits is intended to be vested, and not to another to 
the use of, or in trust for, such person; and if made to any per- 
son to the use of, or in trust for another, no estate or interest, 
legal or equitable, vests in the trustee. But neither this section 
nor the preceding sections of this article shall extend to trust? 
arising, or resulting by implication of law, nor prevent or affect 
the creation of such express trusts as are authorized and de- 
fined in this chapter. 
§ 74. Grant to one where consideration paid by another. 

A grant of real property for a valuable consideration, to one 
person, the consideration being paid by another, is pre- 
sumed fraudulent as against the creditors, at that time, of the 
person paying the consideration, and, unless a fraudulent intent 
is disproved, a trust results in favor of such creditors, to an ex- 
tent necessary to satisfy their just demands; but the title vests 
in the grantee, and no use or trust results from the payment, to 
the person paying the consideration, or in his favor, unless the 
grantee either, 

1. Takes the same as an absolute conveyance, in his own 
name, without the consent or knowledge of the person paying 
the consideration, or. 



THE REAL PROPERTY LAW. 71 

2. In violation of some trust, purchases the property so con- 
veyed with money or property belonging to another. 
§ 75. Bona fide purchasers protected. 

An implied or resulting trust shall not be alleged or estab- 
lished, to defeat or prejudice the title of a purchaser for a valu- 
able consideration without notice of the trust. 
§ 76. Purposes for which express trusts may be created. 

An express trust may be created for one or more of the follow- 
ing purposes: 

1. To sell real property for the benefit of creditors; 

2. To sell, mortgage or lease real property for the benefit of 
annuitants or other legatees, or for the purpose of satisfying any 
charge thereon; 

3. To receive the rents and profits of real property, and apply 
them to the use of any person, during the life of that person, or 
for any shorter term, subject to the provisions of law relating 
thereto; 

4. To receive the rents and profits of real property, and to 
accumulate the same for the purposes, and within the limits, 
prescribed by law. 

§ 77. Certain devises to be deemed powers. 

A devise of real property to an executor or other trustee, for 
the purpose of sale or mortgage, where the trustee is not also 
empowered to receive the rents and profits, shall not vest any 
estate in him; but the trust shall be valid as a power, and the 
real property shall descend to the heirs, or pass to the devisees 
of the testator, subject to the execution of the power. 

§ 78. Surplus income of trust property liable to creditors. 

Where a trust is created to receive the rents and profits of 
real property, and no valid direction for accumulation is given, 
the surplus of such rents and profits, beyond the sum necessary 
for the education and support of the beneficiary, shall be liable 
to the claims of his creditors in the same manner as other per- 
sonal property, which can not be reached by execution. 
§ 79. When an authorized trust is valid as a power. 

Where an express trust relating to real property is created for 
any purpose not specified in the preceding sections of this ar- 
ticle, no estate shall vest in the trustees; but the trust, if direct- 
ing or authorizing the performance of any act which may be 
lawfully performed under a power, shall be valid as a power in 
trust, subject to the provisions of this chapter. 

Where a trust is valid as a power, the real property to which 
the trust relates shall remain in or descend to the persons other- 
wise entitled, subject to the execution of the trust as a power. 



72 THE REAL PROPERTY LAW. 

§ 80. Trustee of express trust to have whole estate. 

Except as otherwise prescribed in this chapter, an express 
trust, valid as such in its creation, shall vest in the trustee the 
legal estate, subject only to the execution of the trust, and the 
beneficiary shall not take any legal estate or interest in the prop- 
erty, but may enforce the performance of the trust. 

§ 81. Qualification of last section. 

The last section shall not prevent any person, creating a 
trust, from declaring to whom the real property, to which the 
trust relates, shall belong, in the event of the failure or termina- 
tion of the trust, or from granting or devising the property, sub- 
ject to the execution of the trust. Such a grantee or devisee 
shall have a legal estate in the property, as against all persons, 
except the trustees, and those lawfully claiming under him. 

§ 82. Interest remaining in grantor of express trust. 

Where an express trust is created, every legal estate and in- 
terest not embraced in the trust, and not otherwise disposed of, 
shall remain in or revert to, the person creating the trust or his 
heirs. 
§ 83. What trust interest may be alienated. 

The right of a beneficiary of an express trust to receive rents 
and profits of real property, and apply them to the use of any 
person, can not be transferred by assignment or otherwise; but 
the right and interest of the beneficiary of any other trust may 
be transferred. Whenever a beneficiary in a trust for the receipt 
of the rents and profits of real property is entitled to a remain- 
der in the whole or a part of the principal fund so held in trust 
subject to his beneficial estate for a life or lives, or a shorter 
term, he may release his interest in such rents and profits, and 
thereupon the estate of the trustee shall cease in that part of 
such principal fund to which such beneficiary has become en- 
titled in remainder, and such trust estate merges in such re- 
mainder. 

§ 84. Transferee of trust property protected. 

When an express trust is created, but is not contained or de- 
clared in the conveyance to the trustee, the conveyance shall be 
deemed absolute as to the subsequent creditors of the trustee 
not having notice of the trust, and as to subsequent purchasers 
from the trustee, without notice and for a valuable considera- 
tion. 

§ 85. When trustee may convey trust property. 

If the trust is expressed in the instrument creating the estate, 
every sale, conveyance or other act of the trustee, in contraven- 
tion of the trust, except as provided in this section, shall be 



THE REAL PROPERTY LAW. 73 

absolutely void. The supreme court, may, by order, on such 
terms and conditions as seem just and proper, authorize any 
such trustee to mortgage or sell such real property, or any part 
thereof, whenever it appears to the satisfaction of the court 
that it is for the best interest of such estate, or that it is neces- 
sary and for the benefit of the estate, to raise funds for the pur- 
pose of preserving and improving it; and whenever the interest 
of the trust estate in any real property is an undivided part or 
share thereof, the same may be sold, if it shall appear to the 
court to be for the best interest of such estate. 

§ 86. When trustee may lease trust property. 

A trustee appointed to hold real property during the life of a 
beneficiary, and to pay or apply the rents, income and profits 
thereof to, or for, the use of such beneficiary, may execute and 
deliver a lease of such real property for a term not exceeding 
five years, without application to the court. The supreme court 
may, by order, on such terms and conditions as seem just and 
proper, in respect to rental and renewals, authorize such a trus- 
tee to lease such real property for a term exceeding five years, 
if it appears to the satisfaction of the court that it is for the 
best interest of the trust estate, and may authorize such trustee 
to covenant in the lease to pay at the end of the term, or re- 
newed term, to the lessee the then fair and reasonable value of 
any building which may have been erected on the premises dur- 
ing such term. 

If any such trustee has leased any such trust property before 
June fourth, eighteen hundred and ninety-five, for a longer term 
than five years, the supreme court, on the application of such 
trustee, may, by order, confirm such lease, and such order, on 
the entry thereof, shall be binding on all persons interested in 
the trust estate. 

§ 87. Notice to beneficiary where trust property is conveyed, 
mortgaged or leased. 
The supreme court shall not grant an order under either of 
the last two preceding sections, unless it appears to the satisfac- 
tion of such court that a written notice, stating the time and 
place of the application therefor, has been served upon the bene- 
ficiary of such trust property, at least eight days before the 
making thereof, if such beneficiary is an adult within the state; 
or if a minor, lunatic, person of unsound mind, habitual drunk- 
ard or absentee, until proof of the service on such person of such 
notice as the court, or a justice thereof, prescribes. 

§ 88. Person paying money to trustee protected. 

A person who shall actually and in good faith pay a sum of 
money to a trustee, which the trustee as such is authorized to 



74 THE REAL PROPERTY LAW. 

receive, shall not be responsible for the proper application of 
the money, according to the trust; and any right or title derived 
by him from the trustee in consideration of the payment shall 
not be impeached or called in question in consequence of a mis- 
application by the trustee of the money paid. 
JJ 89. When estate of trustee ceases. 

When the purpose for which an express trust is created ceases, 
the estate of the trustee shall also cease. 
^ 90. Termination of trusts for the benefit of creditors. 

Where an estate or interest in real property has heretofore 
vested or shall hereafter vest in the assignee or other trustee 
for the benefit of creditors, it shall cease at the expiration of 
twenty-five years from the time when the trust was created, 
except where a different limitation is contained in the instru- 
ment creating the trust, or is especially prescribed by law. The 
estate or interest remaining in the trustee or trustees shall 
thereon revert to the assignor, his heirs, devisee or assignee, as 
if the trust had not been created. 

§ 91. Trust estate not to descend. 

On the death of the last surviving or sole trustee of an express 
trust, the trust estate shall not descend to his heirs nor pass to 
his next of kin or personal representatives; but in the absence 
of a contrary direction on the part of the person creating the 
same, such trust, if unexecuted, shall vest in the supreme court, 
with all the powers and duties of the original trustee, and shall 
be executed by some person appointed for that purpose under 
the direction of the court, who shall not be appointed until the 
beneficiary thereof shall have been brought into court by such 
notice in such manner as the court or a justice thereof may 
direct. 

§ 92. Resignation or removal of trustee and appointment of 
successor. 
The supreme court has power, subject to the regulations es- 
tablished for the purpose in the general rules of practice: 

1. On his application by petition or action, to accept the resig- 
nation of a trustee, and to discharge him from the trust on such 
terms as are just. 

2. In an action brought, or on a petition presented, by any 
person interested in the trust, to remove a trustee who has vio- 
lated or threatens to violate his trust, or who is insolvent, or 
whose insolvency is apprehended, or who for any other 
cause shall be deemed to be an unsuitable person to execute the 
trust. 

3. In case of the resignation or removal of a trustee, to appoint 
a new trustee in his place, and in the meantime, if there is no 



THE REAL PROPERTY LAW. 75 

acting trustee, to cause the trust to be executed by a receiver 
or other officer under its direction. 

This section shall not apply to a trust arising or resulting by 
implication of law, nor where other provision is specially made 
by law, for the resignation or removal of a trustee or the ap- 
pointment of a new trustee. 

§ 93, Grants and devises of real property for charitable pur- 
poses. 
A conveyance or devise of real property for religious, educa- 
tional, charitable or benevolent uses, which is in other respects 
valid, is not to be deemed invalid by reason of the indefiniteness 
or uncertainty of the persons designated as the beneficiaries 
thereunder in the instrument making such conveyance or de- 
vise. If in such instrument, a trustee is named to execute the 
same, the legal title to the real property granted or devised shall 
vest in such trustee. If no person is named as trustee, the 
title to such real property vests in the supreme court, and such 
court shall have control thereof. The attorney-general shall 
represent the beneficiaries in such cases and enforce such trusts 
by proper proceedings. 



ARTICLE IV. 

POWERS. 
Section 110. Effect of article. 

111. Definition of a power. 

112. Definitions of grantor, grantee. 

113. Division of powers. 

114. General power. 

115. Special power. 

116. Beneficial power. 

117. General power in trust. 

118. Special power in trust. 

119. Capacity to grant a power. 

120. How power may be granted. 

121. Capacity to take and execute a power. 

122. Capacity of married woman to take power. 

123. Capacity to take a special and beneficial power. 

124. Reservation of a power. 

125. Effect of power to revoke. 

126. Power to sell in a mortgage. 

127. When power is a lien. 

128. When power is irrevocable. 

129. When estate for life or years is changed into a fee. 

130. Certain powers create a fee. 

131. When grantee of power has absolute fee. 

132. Effect of power to devise in certain cases. 
^ 133. When power of disposition absolute. 

134. Power subject to condition. 

135. Power of life tenant to make leases. 

136. Effect of mortgage by grantee. 

137. When a trust power is imperative. 

138. Distribution when more than one beneficiary. 

139. Beneficial power subject to creditors. 

140. Execution of power on death of trustee. 

141. When power devolves on court. 

142. When creditors may compel execution of trust 

power. 

143. Defective execution of trust power. 
* 144. Effect of insolvent assignment. 



THE REAL PROPERTY LAW. 77 

145. How power must be executed. 

146. Execution by survivors. 

147. Execution of power to dispose by devise. 

148. Execution of power to dispose by grant. 

149. When direction by grantor does not render power 

void. 

150. When directions by grantor need not be followed. 

151. Nominal conditions may be disregarded. 

152. Intent of grantor to be observed. 

153. Consent of grantor or third person to execution of 

power. 

154. When all must consent. 

155. Omission to recite power. 

156. When devise operates as an execution of the power. 

157. Disposition not void because too extensive. 

158. Computation of term of suspension. 

159. Capacity to take under a power. 

160. Purchaser under defective execution. 

161. Instrument affected by fraud. 

162. Sections applicable to trust powers. 



78 THE REAL PROPERTY LAW. 

§ 110. Effect of article. 

Powers, as they existed by law on the thirty-first day of De- 
cember, eighteen hundred and twenty-nine, have been abolished. 
Hereafter the creation, construction and execution of powers, af- 
fecting real property, shall be subject to the provisions of this 
article; but this article does not extend to a simple power of at- 
torney, to convey real property in the name, and for the ben- 
efit of the owner. 

§ 111. Definition of a power. 

A power is an authority to do an act in relation to real 
property, or to the creation or revocation of an estate therein, 
or a charge thereon, which the owner, granting or reserving the 
power, might himself lawfully perform. 

8 112. Definitions of grantor, grantee. 

The word "grantor" is used in this article, in connection with 
a power, as designating the person by whom the power is 
created, whether by grant or by devise; and the word "grantee" 
is so used as designating the person in whom the power is 
vested, whether by grant, devise or reservation. 

§ 113. Division of powers. 

A power, as authorized in this article, is either general or 
special, and either beneficial or in trust. 

§ 114. General power. 

A power is general, where it authorizes the transfer or en- 
cumbrance of a fee, by either a conveyance or a will of or a 
charge on the property embraced in the power, to any grantee 
whatever. 

§ 115. Special power. 
A power is special where either: 

1. The persons or class of persons to whom the disposition of 
the property under the power is to be made are designated; or, 

2. The power authorizes the transfer or encumbrance, by a 
conveyance, will or charge, of any estate less than a fee. 

§ 116. Beneficial power. 

A general or special power is beneficial, where no person, 
other than the grantee, has, by the term of its creation, any in- 
terest in its execution. A beneficial power, general or special, 
other than one of those specified and defined in this article, is 
void. 

§ 117. General power in trust. 
A general power is in trust, where any person or class of per- 



THE REAL PROPERTY LAW. 79 

sons, other than the grantee of the power, is designated as en- 
titled to the proceeds, or any portion of the proceeds, or other 
benefits to result from its execution. 

§ 118. Special power in trust. 
A special power is in trust, where either: 

1. The disposition or charge which it authorizes is limited to 
be made to a person or class of persons, other than the grantee 
of the power; or, 

2. A person or class of persons, other than the grantee, is 
designated as entitled to any benefit, from the disposition or 
charge authorized by the power. 

§ 119. Capacity to grant a power. 

A person is not capable of granting a power, who is not, at the 
same time, capable of transferring an interest in the property 
to which the power relates. 
§ 120. How power may be granted. 

A power may be granted either: 

1. By a suitable clause, contained in an instrument suflScient 
to pass an estate in the real property, to which the power re- 
lates; or, 

2. By a devise contained in a will. 

§ 121. Capacity to take and execute a power. 

A power may be vested in any person capable in law of hold- 
ing, but can not be exercised by a person not capable of trans- 
ferring real property. 
§ 122. Capacity of married woman to take power. 

A general and beneficial power may be given to a married 
woman, to dispose, during her marriage, and without concur- 
rence of her husband, of real property conveyed or devised to 
her in fee. 

§ 123. Capacity to take a special and beneficial power. 

A special and beneficial power may be granted: 

1. To a married woman, to dispose, during the marriage, and 
without the concurrence of her husband, of any estate less than 
a fee, belonging to her, in the property to which the power re- 
lates; or, 

2. To a tenant for life, of the real property embraced in the 
power, to make leases for not more than twenty-one years, and 
to commence in possession during his life; and such a power is 
valid to authorize a lease for that period but is void as to the 
excess. 

§ 124. Reservation of a power. 
The grantor in a conveyance may reserve to himself any 
6 



80 THE REAL PROPERTY LiAW. 

power, boneficial or in trust, which he might lawfully grant to 

another; and a power thus reserved, shall be subject to the 

provisions of this article, in the same manner as if granted to 

another. 

§ 125. Effect of power to revoke. 

Where the grantor in a conveyance reserves to himself for 
his own benefit, an absolute power of revocation, he is to be 
still deemed the absolute owner of the estate conveyed, so far 
as the rights of creditors and purchasers are concerned. 
§ 126. Power to sell in a mortgage. 

Where a power to sell real property is given to a mortgagee, 
or to the grantee in any other conveyance intended to secure 
the payment of money, the power is deemed a part of the secur- 
ity, and vests in, and may be executed by any person who, by 
assignment or otherwise, becomes entitled to the money so 
secured to be paid. 
§ 127. When power is a lien. 

A power is a lien or charge on the real property which it em- 
braces, as against creditors, purchasers and encumbrancers in 
good faith and without notice, of or from a person having an 
estate, in the property only from the time the instrument contain- 
ing the power is duly recorded As against all other persons, 
the power is a lien from the time the instrument in which it is 
contained takes effect. 

§ 128. When power is irrevocable. 

A power, whether beneficial or in trust, is irrevocable, unless 
an authority to revoke it is granted or reserved in the instru- 
ment creating the power. 

§ 129. When estate for life or years is changed into a fee. 

Where an absolute power of disposition, not accompanied by a 
trust, is given to the owner of a particular estate for life or for 
years, such estate is changed into a fee absolute in respect 
to the rights of creditors, purchasers and encumbrancers, but 
subject to any future estates limited thereon, in case the power 
of absolute disposition is not executed, and the property is not 
sold for the satisfaction of debts. 
§ 130. Certain powers create a fee. 

W^here a like power of disposition is given to a person to whom 
no particular estate is limited, such person also takes a fee, 
subject to any future estates that may be limited thereon, but 
absolute in respect to creditors, purchasers and encumbrancers. 

§ 131. When grantee of power has absolute fee. 
Where such a power of disposition is given, and no remainder 



THE REAL. PROPERTY LAW. 81 

is limited on the estate of the grantee of the power, such grantee 

is entitled to an absolute fee. 

§ 132. Effect of power to devise in certain cases. 

Where a general and beneficial power to devise the inheri- 
tance is given to a tenant for life, or for years, such tenant is 
deemed to possess an absolute power of disposition within the 
meaning of and subject to the provisions of the last three sec- 
tions. 
§ 133. When power of disposition absolute. 

Every power of disposition by means of which the grantee is 
enabled, in his lifetime, to dispose of the entire fee for his own 
benefit, is deemed absolute. 
§ 134. Power subject to condition. 

A general and beneficial power may be created subject to a 
condition precedent or subsequent, and until the power becomes 
absolutely vested it is not subject to any provision of the last 
four sections. 
§ 135. Power of life tenant to make leases. 

The power of a tenant for life to make leases is not assignable 
as a separate interest, but is annexed to his estate, and passes 
by a grant of such estate unless specially excepted. If so ex- 
cepted, it is extinguished. 

Such a power may be released by the tenant to a person enti- 
tled to an expectant estate in the property, and shall thereupon 
be extinguished. 
§ 136. Effect of mortgage by grantee. 

A mortgage executed by a tenant for life, having a power to 
make leases, does not extinguish or suspend the power; but the 
power is bound by the mortgage in the same manner as the real 
property embraced therein, and the effects on the power of such 
lien by mortgage are: 

1. That the mortgagee is entitled to an execution of the power 
so far as the satisfaction of his debt requires; and, 

2. That anj subsequent estate, created by the owner, in exe- 
cution of the power, becomes subject to the mortgage as if in 
terms embraced therein. 

§ 137. When a trust power is imperative. 

A trust power, unless its execution or nonexecution is made 
expressly to depend on the will of the grantee, is imperative, 
and imposes a duty on the grantee, the performance of which 
may be compelled for the benefit of the person interested. A 
trust power does not cease to be imperative where the grantee 
has the right to select any, and exclude others, of the persons 
designated as the beneficiaries of the trust. 



82 THH REAL PROPERTY LAW. 

§ 138. Distribution when more than one beneficiary. 

Where a disposition under a power is directed to be made to, 
among, or between, two or more persons, without any specifi- 
cation of the share or sum to be allotted to each, all the persona 
designated shall be entitled to an equal proportion; but when 
the terms of the power import that the estate or fund is to be 
distributed amonj/ the persons so designated, in such manner or 
proportions as the trustee of the power thinks proper, the trus- 
tee may allot the whole to any one or more of such persons in 
exclusion of the others. 

§ 139. Beneficial power subject to creditors. 

A special and beneficial power is liable to the claims of cred- 
itors in the same manner as other interests that can not be 
reached by execution; and the execution of the power may be 
adjudged for the benefit of the creditors entitled. 

§ 140. Execution of power on death of trustee. 

If the trustee of a power, with the right of selection, dies 
leaving the power unexecuted, its execution must be adjudged 
for the benefit, equally, of all the persons designated as bene- 
ficiaries of the trust. 

§ 141. When power devolves on court. 

Where a power in trust is created by will, and the testator has 
omitted to designate by whom the power is to be executed, its 
execution devolves on the supreme court. 

§ 142. When creditors may compel execution of trust power. 

The execution, wholly or partly, of a trust power may be ad- 
judged for the benefit of the creditors or assignees of a person 
entitled as a beneficiary of the trust, to compel its execution, 
where his interest is assignable. 

§ 143. Defective execution of trust power. 

Where the execution of a power in trust is defective, wholly 
or partly, under the provisions of this article, its proper execu- 
tion may be adjudged in favor of the person designated as the 
beneficiary of the trust. 

§ 144. Effect of insolvent assignment. 

A beneficial power, and the interest of every person entitled 
to compel the execution of a trust power, shall pass, respect- 
ively, to a trustee or committee of the estate of the person in 
whom the power or interest is vested, or an assignee for the 
benefit of creditors. 



THE REAL PROPERTY LAW. 83 

§ 145. How power must be executed. 

A i>ower can be executed only by a written instrument, which 
would be sufficient to pass the estate, or interest, intended to 
pass under the power, if the person executing the power were 
the actual owner. 
S 146. Execution by survivors. 

Where a power is vested in two or more persons, all must 
unite in its execution; but if before its execution, one or more of 
such persons dies, the power may be executed by the survivor 
or survivors. 
§ 147. Execution of power to dispose by devise. 

Where a power to dispose of real property is confined to a dis- 
I>osition by devise or will, the instrument must be a written 
will, executed as required by law. 
§ 148. Execution of power to dispose by grant. 

Where a power is confined to a disposition by grant, it can 
not be executed by will, although the disposition is not intended 
to take effect until after the death of the person executing the 
power. 
§ 149. When direction by grantor does not render power void. 

Where the grantor of a power has directed or authorized it to 
be executed by an instrument not sufficient in law to pass the 
estate, the power is not void, but its execution is to be gov- 
erned by the provisions of this article. 
§ 150. When directions by grantor need not be followed. 

Where the grantor of a power has directed any formality to be 
observed in its execution, in addition to those which would be 
sufficient by law to pass the estate, the observance of such 
additional formality is not necessary to the valid execution of 
the power. 
§ 151. Nominal conditions may be disregarded. . 

Where the conditions annexed to a power are merely nominal, 
and evince no intention of actual benefit to the party to whom, 
or in whose favor, they are to be performed, they may be wholly 
disregarded in the execution of the power. 
§ 152. Intent of grantor to be observed. 

Except as provided in this article, the intentions of the grantor 
of a power as to the manner, time and conditions of its exe- 
cution must be observed; subject to the power of the supreme 
court, to supply a defective execution as provided in this article. 
§ 153. Consent of grantor or third person to execution of power. 

Where the consent of the grantor or a third person to the exe- 
cution of a power is requisite, such consent shall be expressed 



84 THE REAL PROPERTY LAW. 

in the instrnment by wlaich the power is executed, or in a 
written certificate thereon. In the first case, the instrument of 
execution, in the second, the certificate, must be subscribed by 
the person whose consent is necessary; and to entitle the instru- 
ment to be recorded, such signature must be acknowledged or 
proved and certified in like manner as a deed to be recorded. 

§ 154. When all must consent. 

Where the consent of two or more persons to the execution of 
a power is requisite, all must consent thereto; but if, before 
its execution, one or more of them die, the consent of the survi- 
vor or survivors is sufficient, unless otherwise prescribed by the 
terms of the power. 
§ 155. Omission to recite power. 

An instrument executed by the grantee of a power, conveying 
an estate or creating a charge, which he would have no right 
to convey or create, except by virtue of the power, shall be 
deemed a valid execution of the power, although the power be 
not recited or referred to therein. 
§ 156. When devise operates as an execution of the power. 

Real property embraced in a power to devise passes by a will 
purporting to convey all the real property of the testator, unless 
the intent that the will is not to operate as an execution of the 
power, appears, either expressly or by necessary implication. 

§ 157. Disposition not void because too extensive. 

A disposition or charge by virtue of a power is not void on the 
ground that it is more extensive than was authorized by the 
power; but an estate or interest so created, so far as embraced 
by the terms of the power, is valid. 
§ 158. Computation of term of suspension. 

The period during which the absolute right of alienation may 
be suspended, by an instrument in execution of a power must 
be computed, not from the date of such instrument, but from 
the time of the creation of the power. 
§ 159. Capacity to take under a power. 

An estate or interest can not be given or limited to any person, 
by an instrument in execution of a power, unless it would have 
been valid, if given or limited at the time of the creation of the 
power. 

§ 160. Purchase under defective execution. 

A purchaser for a valuable consideration, claiming under a de- 
fective execution of a power, is entitled to the same relief as a 
similar purchaser, claiming under a defective conveyance from 
an actual owner. 



THE REAL PROPERTY LAW. 85 

§ 161. Instrument affected by fraud. 

An instrument in execution of a power is affected by fraud, 
in the same manner as a conveyance or will, executed by an 
owner or by a trustee. 

§ 162. Sections applicable to trust powers. 

Sections ninety -one to ninety-three of this chapter, both inclu- 
sive, in relation to express trust estates, and the trustee thereof, 
apply equally to trust powers, however created, and to the gran- 
tees of such powers. 



ARTICLE V. 

DOWER. 

Section 170. Dower. 

171. Dower in lands exchanged. 
» 172. Dower in lands mortgaged before marriage. 

173. Dower in lands mortgaged for purchase money. 

174. Surplus proceeds of sale under purchase money 
mortgages. 

175. Widow of mortgagee not endowed. 

176. When dower barred by misconduct. 

177. When dower barred by jointure. 

178. When dower barred by pecuniary provisions. 

179. When widow to elect between jointure and dower. 

180. Election between devise and dower. 

181. When deemed to have elected. 

182. When provision in lieu of dower is forfeited. 

183. Effect of acts of husband. 

184. Widow's quarantine. 

185. Widow may bequeath crop. 

186. Divorced woman may release dower. 

187. Married woman may release dower by attorney. 



THE REAL PROPERTY L.AW. 87 

§ 170. Dower. 

A widow shall be endowed of the third part of all ther lands 
whereof her husband was seized of an estate of inheritance, at 
any time during the marriage. 
§ 171. Dower in lands exchanged. 

If a husband seized of an estate of inheritance in lands, ex- 
changes them for other lands, his widow shall not have dower 
of both, but she must make her election, to be endowed of the 
lands given, or of those taken, in exchange; and if her election 
be not evinced by the commencement of an action to recover 
her dower of the lands given in exchange within one^^ear after 
the death of her husband, she is deemed to have elected to take 
her dower of the lands received in exchange. 
§ 172. Dower in lands mortgaged before marriage. 

Where a person seized of an estate of inheritance in lands, ex- 
ecutes a mortgage thereof, before marriage, his widow is, nev- 
ertheless, entitled to dower of the lands mortgaged, as against 
every person except the mortgagee and those claiming under 
him. 
§ 173. Dower in lands mortgaged for purchase-money. 

Where a husband purchases lands during the marriage, and at 
the same time mortgages his estate in those lands to secure the 
payment of the purchase-money, his widow is not entitled to 
dower of those lands, as against the mortgagee or those claim- 
ing under him, although she did not unite in the mortgage. She 
is entitled to her dower as against every other person. 
§ 174. Surplus proceeds of sale, under purchase-money mort- 
gages. 

Where, in a case specified in the last section, the mortgagee, 
or a person claiming under him, causes the land mortgaged to 
be sold, after the death of the husband, either under a power 
of sale contained in the mortgage, or by virtue of a judgment 
in an action to foreclose the mortgage, and any surplus remains, 
after payment of the money due on the mortgage and the costs 
and charges of the sale, the widow is nevertheless entitled to the 
interest or income of one-third part of the surplus for her life, 
as her dower. 
§ 175. Widow of mortgagee not endowed. 

A widow shall not be endowed of the lands conveyed to her 
husband by way of mortgage, unless he acquires an absolute 
estate therein, during the marriage. 
§ 176. When dower barred by misconduct. 

In case of a divorce, dissolving the marriage contract for the 
misconduct of the wife, she shall not be endowed. 



THE REAL PROPERTY LAW. 

§ 177. When dower barred by jointure. 

Where an estate in real property is conveyed to a person and 
his intended wife, or to the intended wife alone, or to a person 
in trust for them or for the intended wife alone, for the purpose 
of creating a jointure for her, and with her assent, the jointure 
bars her right or claim of dower in all the lands of the husband. 
The assent of the wife to such a jointure is evidenced, if she be 
of full age, by her becoming a party to the conveyance by which 
it is settled; if she be a minor, by her joining with her father 
or guardian in that conveyance. 
§ 178. When dower barred by pecuniary provisions. 

Any pecuniary provision, made for the benefit of an intended 
wife and in lieu of dower, if assented to by her as prescribed in 
the last section, bars her right or claim of dower in all lands 
of her husband. 

§ 179. When widow to elect between jointure and dower. 

If, before the marriage, but without her assent, or, if after the 
marriage, real property is given or assured for the jointure of a 
wife, or a pecuniary provision is made for her, in lieu of dower, 
she must make her election whether she will take the jointure 
or pecuniary provision, or be endowed of the lands of her hus- 
band; but she is not entitled to both. 

§ 180. Election between devise and dower. 

If real property is devised to a woman, or a pecuniary or 
other provision is made for her by will in lieu of her dower, she 
must make her election whether she will take the property so 
devised, or the provision so made, or be endowed of the lands 
of her husband; but she is not entitled to both. 
§ 181. When deemed to have elected. 

Where a woman is entitled to an election, as prescribed in 
either of the last two sections, she is deemed to have elected to 
take the jointure, devise or pecuniary provision, unless within 
one year after the death of her husband she enters upon the 
lands assigned to her for her dower, or commences an action 
for her dower. But, during such period of one year after the 
death of her said husband, her time to make such election may 
be enlarged by the order of any court competent to pass on the 
accounts of executors, administrators or testamentary trustees, 
or to admeasure dower, on an aflBdavit showing the pendency 
of a proceeding to contest the probate of the will containing 
such jointure, devise or pecuniary provision, or of an action to 
construe or set aside such will, or that the amount of claims 
against the estate of the testator can not be ascertained within 
the period so limited, or other reasonable cause, and on notice 
given to such persons, and in such manner, as such court may 



THE REAL PROPERTY LAW. 89 

direct. Such order shall be indexed and recorded in the same 
manner as a notice of pendency of action in the otfice of the 
clerk of each county wherein the real property or a portion 
thereof affected thereby is situated. 

§ 182. When provision in lieu of dower is forfeited. 

Every jointure, devise and pecuniary provision in lieu of 
dower is forfeited by the woman for whose benefit it is made 
in a case in which she would forfeit her dower; and on such for- 
feiture, an estate so conveyed for jointure, or devised, or a pecun- 
iary provision so made, immediately vests in the person or legal 
representatives of the person in whom they would have vested 
on the determination of her interest therein, by her death. 

§ 183. Effect of acts of husband. 

An act, deed, or conveyance, executed or performed by the 
husband without the assent of his wife, evidenced by her ac- 
knowledgment thereof, in the manner required by law to 
pass the contingent right of dower of a married woman, or a 
judgment or decree confessed by or recovered against him, or 
any laches, default, covin or crime of a husband, does not preju- 
dice the right of his wife to her dower or jointure, or preclude 
her from the recovery thereof. 

§ 184. Widow's quarantine. 

A widow may remain in the chief house of her husband forty 
days after his death, whether her dower is sooner assigned to 
her or not, without being liable to any rent for the same; and 
in the meantime she may have her reasonable sustenance out of 
the estate of her husband. 

I 185. Widow may bequeath a crop. 

A woman may bequeath a crop in the ground of land held by 
her in dower. 

§ 186. Divorced woman may release dower. 

A woman who is divorced from her husband, whether such 
divorce be absolute or limited, or granted in his or her favor, 
by any court of competent jurisdiction, may release to him, by 
an in^3trument in writing, sufficient to pass title to real estate, 
her inchoate right of dower in any specific real property there- 
tofore owned by him, or generally in all such real property, and 
such as he shall thereafter acquire. 

§ 187. Married woman may release dower by attorney. 

A married woman of full age may release her inchoate right 
of dower in real property by attorney in fact in any case where 
she can personally release the same. 



ARTICLE VI. 
LANDLORD AND TENANT. 

Section 190. Action for use and occupation. 

191. Rent due on life leases recoverable. 

192. Wlien rent is apportionable. 

193. Rights where property or lease is transferred. 

194. Attornment by tenant 

195. Notice of action adverse to possession of tenant. 

196. Effect of renewal on sub-lease. 

197. When tenant may surrender premises. 

198. Termination of tenancies at will or by sufferance, 

by notice. 
399. Liability of tenant holding over after giving notice 
of intention to quit. 

200. Liability of tenant holding over after giving notice 

to quit. 

201. Liability of landlord where premises are occupied 
for unlawful purpose. 

202. Duration of certain agreements in New York. 



THE REAL PROPERTY LAW. 91 

§ 190. Action for use and occupation. 

The landlord may recover a reasonable compensation for the 
use and occupation of real property, by any person, under an 
agreement, not made by deed; and a parol lease or other agree- 
ment may be used as evidence of the amount to which he is 
entitled. 
§ 191. Rent due on life leases recoverable. 

Rent due on a lease for life or lives, is recoverable by action, 
as well after as before the death of the person on whose life 
the rent depends, and in the same manner as rent due on a 
lease for years. 
§ 192. When rent is apportionable. 

Where a tenant for life, who shall have demised the real prop- 
erty, dies before the first rent day, or between two rent days, 
his executor or administrator may recover the proportion of 
rent which accrued to him before his death. 
§ 193. Rights where property or lease is transferred. 

The grantee of leased real property, or of a reversion thereof, 
or of any rent, the devisee or assignee of the lessor of such a 
lease, or the heir or personal representative of either of them, 
has the same remedies, by entry, action or othervp-ise, for the 
nonperformance of any agreement contained in the assigned 
lease for the recovery of rent, for the doing of any waste, or for 
other cause of forfeiture as his grantor or lessor had, or would 
have had, if the reversion had remained in him. A lessee of 
real property, his assignee or personal representative, has the 
same remedy against the lessor, his grantee or assignee, or the 
representative of either, for the breach of an agreement con- 
tained in the lease, that the lessee might have had against his 
immediate lessor, except a covenant against incumbrances or 
relating to the title or possession of the premises leased. This 
section applies as well to a grant or lease in fee, reserving 
rent, as to a lease for life or for years; but not to a deed of con- 
veyance in fee, made before the ninth day of April, eighteen 
hundred and five, or after the fourteenth day of April, eighteen 
hundred and sixty. 
§ 194. Attornment by tenant. 

The attornment of a tenant to a stranger is absolutely void, 
and does not in any way affect the possession of the landlord 
unless made either: 

1. With the consent of the landlord; or, 

2. Pursuant to or in consequence of a judgment, order, or de- 
cree of a court of competent jurisdiction; or, 

3. To a mortgagee, after the mortgage has become forfeited. 
§ 195. Notice of action adverse to possession of tenant. 

Where a process or summons in an action to recover the real 
property occupied by him, or the possession thereof, is served 



92 THE REAL PROPERTY LAW. 

upon a tenant, he must forthwith give notice thereof to his land- 
lord; otherwise he forfeits the value of three years' rent of such 
property, to the landlord or other person of whom he holds. 
§ 196. Effect of renewal on sub-lease. 

The surrender of an under-lease is not requisite to the validity 
of the surrender of the original lease, where a new lease is given 
by the chief landlord. Such a surrender and renewal do not im- 
pair any right or interest of the chief landlord, his lessee or the 
holder of an under-lease, under the original lease; including the 
chief landlord's remedy by entry, for the rent or duties secured 
by the new lease, not exceeding the rent and duties reserved in 
the original lease surrendered. 
§ 197. When tenant may surrender premises. 

Where any building, which is leased or occupied, is destroyed 
or so injured by the elements, or any other cause as to be un- 
tenantable, and unfit for occupancy, and no express agreement 
to the contrary has been made in writing, the lessee or occupant 
may, if the destruction or injury occurred without his fault or 
neglect, quit and surrender possession of the leasehold premises, 
and of the land so leased or occupied; and he is not liable to 
pay to the lessor or owner, rent for the time subsequent to the 
surrender. 

§ 198. Termination of tenancies at will or by sufferance by 
notice. 

A tenancy at will or by sufferance, however created, may be 
terudnated by a written notice of not less than thirty days given 
in behalf of the landlord, to the tenant, requiring him to remove 
from the premises; which notice must be served, either by deliv- 
ering to the tenant or to a person of suitable age and discre- 
tion, residing upon the premises, or if neither the tenant nor 
such a person can be found, by affixing it upon a conspicuous 
part of the premises, where it may be conveniently read. At 
the expiration of thirty days after the service of such notice, 
the landlord may re-enter, maintain ejectment, or proceed, in 
the manner prescribed by law, to remove the tenant, without 
further or other notice to quit. 

8 199. Liability of tenant holding over after giving notice of in- 
tention to quit. 
If a tenant gives notice of his intention to quit the premises 
held by him, and does not accordingly deliver up the possession 
thereof, at the time specified in such notice, he or his personal 
representatives must, so long as he continues in possession, 
pay to the landlord, his heirs or assigns, double the rent which 
he should otherwise have paid, to be recovered at the same 
time, and in the same manner, as the single rent. 



THE REAL PROPERTY LAW. 93 

§ 200. Liability of tenant holding over after giving notice to 
quit. 
Where, on the termination of an estate for life, or for years, 
the person entitled to the possession demands the same, and 
serves, in the same manner as for the termination of a tenancy 
at will, a written notice to quit, if the tenant, or any person in 
possession under him, or by collusion v^ith him, willfully holds 
over, after the expiration of thirty days from such service, he 
must pay to the person so kept out of possession, or his repre- 
sentatives, at the rate of double the yearly value of the prop- 
erty detained, for the time while he so detains the same, to- 
gether with all damages incurred by the person so kept out by 
reason of such detention. There is no equitable defense or relief 
agaiucst a demand accrued, or a recovery had, under this sec- 
tion. 

§ 201. Liability of landlord where premises are occupied for un- 
lawful purpose. 

The owner of real property, knowingly leasing or giving posses- 
sion of the same to be used or occupied, wholly or partly, for any 
unlawful trade, manufacture or business, or knowingly permit- 
ting the same to be so used, is liable severally, and also jointly 
with one- or more of the tenants or occupants thereof, for any 
damage resulting from such unlawful use, occupancy, trade, 
manufacture or business. 
§ 202. Duration of certain agreements in New York. 

An agreement, for the occupation of real property in the city 
of New York, which shall not particularly specify the duration 
of the occupation, shall be deemed to continue until the first 
day of May, next after the possession commences under the 
agreement: and rent thereunder is payable at the usual quarter 
days, for the payment of rent in that city, unless otherwise ex- 
pressed in the agreement 



ARTICLE VII. 

CONVEYANCES AND MORTGAGES. 

Section 205. Definitions and use of terms. 
20(3. L/ivery of seizin abolished. 

207. When written conveyance necessary. 

208. Grant of fee or freehold. 

209. When grant takes effect. 

210. Estate which passes by grant or devise. 

211. Certain deeds declared grants. 

212. Conveyance by tenant for life or years of greater 

estate than possessed. 

213. Effect of conveyance where property is leased. 

214. Covenants in mortgages. 

215. Mortgages on real property inherited or devised. 

216. Covenants not implied. 

217. Lineal and collateral warranties abolished. 

218. Construction of covenants in grants of freehold in- 

terests. 

219. Construction of covenants in mortgages and bonds. 

220. Construction of grant of appurtenances and of all 

the rights and estate of grantor. 

221. Construction of grant in executor's or trustee's 

deed of appurtenances, and of the estate of tes- 
tator and grantor. 

222. Covenants to bind representatives of grantor and 

mortgagor and enure to the benefit of whom. 

223. Short forms of deeds and mortgages. 

224. When contract to lease or sell void. 

225. Effect of grant or mortgage of real property ad- 

versely possessed. 

226. Conveyances with intent to defraud purchasers and 

incumbrancers void. 

227. Conveyances with intent to defraud creditors void. 

228. Conveyances void as to creditors, purchasers and 

incumbrancers, void as to heirs and assigns. 

229. Fraudulent intent, question of fact. 

230. Rights of purchaser or incumbrancer for valuable 

consideration protected. 

231. Conveyances with power to revoke, determine or 

alter. 

232. Disaflirmance of fraudulent act by executor and 

others. 

233. When remainderman may pay interest owed by 

life tenant. 

234. Powers of courts of equity not abridged. 



THE REAL PROPERTY LAW. 



05 



§ 205. Definitions and use of terms. 

The term "heirs," or other words of inheritance, are not requi- 
site to create or convey an estate in fee. The term "convey- 
ance," as used in this article, includes every instrument, in 
writing, except a will, by which any estate or interest in real 
property is created, transferred, assigned or surrendered. Every 
instru nent creating, transferring, assigning or surrendering an 
estate or interest in real property must be construed according 
to the intent of the parties, so far as such intent can be gath- 
ered from the whole instrument The terms "estate" and "inter- 
est in real property," include every such estate and interest, 
freehold or chattel, legal or equitable, present or future, vested 
or contingent. 
§ 206. Livery of seizin abolished. 

The conveyance of real property by feoffment, with livery of 
seizin, has been abolished. 

§ 207. When written conveyance necessary. 

An estate or interest in real property, other than a lease for 
a term not exceeding one year, or any trust or power, over or 
concerning real property, or in any manner relating thereto, can 
not be created, granted, assigned, surrendered or declared, un- 
less by act or operation of law, or by a deed or conveyance in 
writing, subscribed by the person creating, granting, assigning, 
surrendering or declaring the same, or by his lawful agent, 
thereunto authorized by writing. But this section does not af- 
fect the power of a testator in the disposition of his real prop- 
erty by will; nor prevent any trust from arising or being ex- 
tinguished by implication or operation of law, nor any declara- 
tion of trust from being proved by a writing subscribed by the 
person declaring the same. 

§ 208. Grant of fee or freehold. 

A grant in fee or of a freehold estate, must be subscribed by 
the person from whom the estate or interest conveyed is in- 
tended to pass, or by his lawful agent. If not duly acknowl- 
edged before its delivery, according to the provisions of this 
chapter, its execution and delivery must be attested by at least 
one witness, or, if not so attested, it does not take effect as 
against a subsequent purchaser or encumbrancer until so ac- 
knowledged. 

§ 209. When grant takes effect 

A grant takes effect, so as to vest the estate or interest in- 
tended to be conveyed, only from its delivery; and all the rules 
of law, now in force, in respect to the delivery of deeds^ apply 
to grants hereafter executed. 
7 



96 THE REAL PROPERTY LAW. 

§ 210. Estate which passes by grant or devise. 

A grant or devise of real property passes all the estate or in- 
terest of the grantor or testator unless the intent to pass a less 
estate or interest appears by the express terms of such grant or 
devise or by necessary implication therefrom. A greater estate 
or interest does not pass by any grant or conveyance, than the 
grantor possessed or could lawfully convey, at the time of the 
delivery of the deed; except that every grant is conclusive 
against the grantor and his heirs claiming from him by descent, 
and as against a subsequent purchaser or encumbrancer from 
such grantor, or from such heirs claiming as such, other than 
a subsequent purchaser or encumbrancer, in good faith and for 
a valuable consideration, who acquires a superior title by a con- 
veyance that has been first duly recorded. 
§ 211. Certain deeds declared grants. 

Deeds of bargain and sale, and of lease and release, may con- 
tinue to be used; and are to be deemed grants, subject to all 
the provisions of law in relation thereto. 

§ 212. Conveyance by tenant for life or years of greater estate 
than possessed. 
A conveyance made by a tenant for life or years, of a greater 
estate than he possesses, or can lawfully convey, does not work 
a forfeiture of his estate, but passes to the grantee all the title, 
estate or interest which such tenant can lawfully convey. 

§ 213. Effect of conveyance where property is leased. 

An attornment to a grantee is not requisite to the validity of 
a conveyance of real property occupied by a tenant, or of the 
rents or profits thereof, or any other interest therein. But the 
payment of rent to a grantor, by his tenant, before notice of the 
conveyance, binds the grantee; and the tenant is not liable to 
such grantee, before such notice, for the breach of any condi- 
tion of the lease. 

§ 214. Covenants in mortgages. 

A mortgage of real property does not imply a covenant for the 
payment of the sum intended to be secured; and where such 
covenant is not expressed in the mortgage, or a bond or other 
separate instrument to secure such payment, has not been given, 
the remedies of the mortgagee are confined to the property men- 
tioned in the mortgage. 

§ 215. Mortgages on real property inherited or devised. 

Where real property, subject to a mortgage executed by any 
ancestor or testator, descends to an heir, or passes to a devisee, 
such heir or devisee must satisfy and discharge the mortgage 
out of his own property, without resorting to the executor or ad- 



THE REAL PROPERTY LAW. 97 

miuistrator of his ancestor or testator, unless there be an ex- 
press direction in the will of such testator, that such mortgage 
be otherwise paid. 
§ 216. Covenants not implied. 

A covenant is not implied in a conveyance of real property, 
whether the conveyance contains any special covenant or not. 
§ 217. Lineal and collateral warranties abolished. 

Lineal and collateral warranties, with all their incidents, have 
been abolished; but the heirs and devisees of a person, who has 
made a covenant or agreement, are answerable thereon, to the 
extent of the real property descended or devised to them, in the 
cases and in the manner prescribed by law. 
§ 218. Construction of covenants in grants of freehold interests. 

In grants of freehold interests in real property, the following 
or similar covenants must be construed as follows: 

1. Seizin.— A covenant that the grantor "is seized of the said 
premises (described) in fee simple, and has good right to convey 
the same," must be construed as meaning that such grantor, at 
the time of the execution and delivery of the conveyance, is 
lawfully seized of a good, absolute and indefeasible estate of 
inheritance in fee simple, of and in all and singular the premi- 
ses thereby conveyed, with the tenements, hereditaments and 
appurtenances thereto belonging, and has good right, full power 
and lawful authority to grant and convey the same by the said 
conveyance. 

2. Quiet enjoyment.— A covenant that the grantee "shall 
quietly enjoy the said premises," must be construed as meaning 
that such grantee, his heirs, successors and assigns, shall and 
may, at all times thereafter, peaceably and quietly have, hold, 
use, occupy, possess and enjoy the said premises, and every 
part and parcel thereof, with the appurtenances, without any 
let, suit, trouble, molestation, eviction, or disturbance of the 
grantor, his heirs, successors or assigns, or any person or per- 
sons lawfully claiming or to claim the same. 

3. Freedom from encumbrances.— A covenant "that the said 
premises are free from encumbrances," must be construed as 
meaning that such premises are free, clear, discharged and un- 
encumbered of and from all former and other gifts, grants, 
titlis, charges, estates, judgments, taxes, assessments, liens and 
encumbrances, of what nature or kind soever. 

4. Further assurance.— A covenant that the grantor will "exe- 
cute or procure any further necessary assurance of the title to 
said premises," must be construed as meaning that the grantor 
and his heirs, or successors, and all and every person or persons 
whomsoever lawfully or equitably deriving any estate, right, 



98 THE REAL PROPERTY LAW. 

title, or interest of, in, or to the premises conveyed by, from, 
under, or in trust for him or them, shall and will at any time or 
times thereafter upon the reasonable request, and at the proper 
costs and charges of the grantee, his heirs, successors and as- 
signs, make, do, and execute, or cause to be made, done and exe- 
cuted, all and every such further and other lawful and reason- 
able acts, conveyances and assurances in the law for the better 
and more effectually vesting and confirming the premises there- 
by granted or so intended to be, in and to the grantee, his heirs, 
successors and assigns forever, as by the grantee, his heirs, suc- 
cessors or assigns, or his or their counsel learned in the law, 
shall be reasonably advised or required. 

5. Warranty of title.— A covenant that the grantor "will for 
ever warrant the title" to the said premises, must be construed 
as meaning that the grantor and his heirs, or successors, the 
premises granted, and every part and parcel thereof, with the 
appurtenances, unto the grantee, his heirs, successors and as- 
signs, against the grantor and his heirs or successors, and 
against all and every person and persons whomsoever lawfully 
claiming or to claim the same shall and will warrant and for- 
ever defend. 

6. Grantor has not encumbered.— A covenant that the grantor 
"has not done or suffered anything whereby the said premises 
have been encumbered," must be construed as meaning that 
the grantor has not made, done, committed, executed, or suf- 
fered any act or acts, thing or things whatsoever, whereby or 
by means wherof, the above mentioned and described premises, 
or any part or parcel thereof, now are, or at any time hereafter 
shall or may be impeached, charged or incumbered in any man- 
ner or way whatsoever. 

§ 219. Construction of covenants in mortgages and bonds. 

In mortgages of real property, and in bonds secured thereby, 
the following or similar covenants must be construed as follows: 

1. Agreement that whole sum shall become due.— The words 
"and it is hereby expressly agreed that the whole of the said 
principal sum shall become due at the option of said mortgagee 

or obligee after default in the payment of interest for 

days, or after default in the payment of any tax or assessment 
for days, after notice and demand," must be con- 
strued as meaning that should any default be made in the pay- 
ment of the said interest, or of any part thereof, on any day 
whereon the same is made payable, or should any tax or assess- 
ment, which now is or may be hereafter imposed upon the 
premises hereinafter described, become due or payable, and 
should the said interest remain unpaid and in arrear for the 
space of days, or such tax or assessment remain un- 



THE REAL PROPERTY LAW. 99 

paid and in arrear for days after written notice by 

the mortgagee or obligee, his executors, administrators, succes- 
sors or assigns, that such tax or assessment is unpaid, and de- 
mand for the payment thereof, then and from thenceforth, that 
is to say, after the lapse of either one of said periods, as the case 
may be, the aforesaid principal sum, with all arrearage of inter- 
est thereon, shall, at the option of the said mortgagee or obligee, 
his executors, administrators, successors or assigns, become and 
be due and payable immediately thereafter although the period 
above limited for the payment thereof may not then have ex- 
pired, anything thereinbefore contained to the contrary thereof 
in any wis ? notwithstanding. 

2. In default of payment, mortgagee to have power to sell.— 
A covenant that the mortgagor "will pay the indebtedness, as 
provided in the mortgage, and if default be made in the pay- 
ment of any part thereof, the mortgagee shall have power to sell 
the premises therein described, according to law," must be con- 
strued as meaning that the mortgagor for himself, his heirs, exe- 
cutors and administrators or successors, doth covenant and 
agree to pay to the mortgagee, his executors, administrators, 
successors and assigns, the principal sum of money secured by 
said mortgage, and also the interest thereon as provided by said 
mortgage. And if default shall be made in the payment of the 
said principal sum or the interest that may grow due thereon, 
or of any part thereof, that then and from thenceforth it shall 
be lawful for the mortgagee, his executors, administrators or 
successors to enter into and upon all and singular the premises 
granted, or intended so to be, and to sell and dispose of the same, 
and all benefit and equity of redemption of the said mortgagor, 
his heirs, executors, administrators, successors or assigns there- 
in, at public auction, according to the act in such case made and 
provided, and as the attorney of the mortgagor for that purpose 
duly authorized, constituted and appointed, to make and deliver 
to the purchaser or purchasers thereof a good and sufficient 
deed or deeds of conveyance for the same in fee simple (or 
otherwise, as the case may be) and out of the money arising 
from such sale, to retain the principal and interest which shall 
then bo due, together with the costs and charges of advertise- 
ment and sale of the said premises, rendering the overplus of 
the purchase-money, if any there shall be, unto the mortgagor, 
his heirs, executors, administrators, successors or assigns, which 
sale so to be made shall forever be a perpetual bar both in law 
and equity against the mortgagor, his heirs, successors and as- 
signs, and against all other persons claiming or to claim the 
premisepi, or any part thereof by, from or under him, them or 
any of them. 

3. Mortgagor to keep buildings insured.— A covenant "that the 



100 THE REAL PROPERTY LAW. 

mortgagor will keep the buildings on the said premises in- 
sured against loss by fire, for the benefit of the mortgagee," 
must be construed as meaning that the mortgagor, his heirs, 
successors and assigns will, during all the time until the money 
secured by the mortgage shall be fully paid and satisfied, keep 
the buildings erected on the premises insured against loss or 
damag3 by fire, to an amount and in a company to be approved 
by the mortgagee, and will assign and deliver the policy or pol- 
icies of such insurance to the mortgagee, his executors, admin- 
istrators, successors or assigns, so and in such manner and 
form that he and they shall at all time and times, until the full 
payment of said moneys, have and hold the said policy or pol- 
icies as a collateral and further security for the payment of said 
money, and in default of so doing, that the mortgagee or his 
executors, administrators, successors or assigns, may make 
such insurance from year to year, in a sum not exceeding the 
principal sum for the purposes aforesaid, and pay the premium 
or premiums therefor, and that the mortgagor will pay to the 
mortgagee, his executors, administrators, successors or assigns, 
such premium or premiums so paid, with interest from the 
time of payment, on demand, and that the same shall be deemed 
to be secured by the mortgage, and shall be collectible there- 
upon and thereby in like manner as the principal moneys, and 
in default of such payment by the mortgagor, his heirs, execu- 
tors, administrators, successors or assigns,, or of assignment 
and delivery of policies as aforesaid the whole of the principal 
sum and interest secured by the mortgage shall, at the option 
of the mortgagee, his executors, administrators, successors or 
assigns, immediately become due and payable. 

4. Mortgagor to give further assurance of title.— A covenant 
that the mortgagor "will execute any further necessary assur- 
ance of the title to said premises, and will forever warrant said 
title," must be construed as meaning that the mortgagor shall 
and will make, execute, acknowledge and deliver in due form of 
law, all such further or other deeds or assurances as may at any 
time hereafter be reasonably desired or required for the more 
fully and effectually conveying the premises by the mortgage 
described, and thereby granted or intended so to be, unto the 
said miCrtgagee, his executors, administrators, successors or as- 
signs, for the purpose aforesaid, and unto all and every person 
or persons, corporation or corporations, deriving any estate, 
right, title or interest therein, under the said indenture of mort- 
gage, or the power of sale therein contained, and the said 
granted premises against the said mortgagor, and all persons 
claiming through him will warrant and defend. 



THE REAL PROPERTY LAW. 101 

§ 220. Construction of grant of appurtenances and of all the 
rights and estate of grantor- 

In any grant or mortgage of freehold interests in real estate, 
the words, "together with the appurtenances and all the estate 
and rights of the grantor in and to said premises," must be con- 
strued as meaning, together with all and singular the tene- 
ments, hereditaments and appurtenances thereunto belonging 
or in anywise appertaining, and the reversion and reversions, 
remainder and remainders, rents, issues and profits thereof, and 
also all the estate, right, title, interest, dower and right of dower, 
curtesy, and right of curtesy, property, possession, claim and 
demand whatsoever, both in law and in equity, of the said 
grantor of, in and to the said granted premises and every part 
and parcel thereof, with the appurtenances. 

§ 221. Construction of grant in executor's or trustee's deed of 
appurtenances, and of the estate of testator and 
grantor. 

In any deed by an executor of, or trustee under a will, the 
words "together with the appurtenances and also all the estate 
which the said testator had at the time of his decease in said 
premises, and also the estate therein which said grantor has or 
has power to convey or dispose of, whether individually or by 
virtue of said will or otherwise," must be construed as mean- 
ing, together with all and singular the tenements, heredita- 
ments and appurtenances thereunto belonging, or in anywise 
appertaining, and the reversion and reversions, remainder and 
remainders, rents, issues and profits thereof; and also all the 
estate, right, title, interest, property, possession, claim and de- 
mand whatsoever, both in law and equity, which the said testa- 
tor had in his lifetime, and at the time of his decease, or which 
the said grantor has or has power to convey or dispose of, 
whether individually or by virtue of the said last will and tes- 
tament or otherwise, of, in and to the said granted premises, 
and every part and parcel thereof, with the appurtenances. 

§ 222. Covenants to bind representatives of grantor and mort- 
gagor and enure to benefit of whom. 

All covenants contained in any grant or mortgage of real estate 
bind the heirs, executors, administrators, successors and as- 
signs, of the grantor or mortgagor, and enure to the benefit of 
the heirs, executors, administrators, successors and assigns of 
the grantee or mortgagee in the same manner and to the same 
extent, and with like effect as if such heirs, executors, adminis- 
trators, successors and assigns were so named in such cove- 
nants, unless otherwise in said grant of mortgage expressly 
provided. 



102 THE REAL PROPERTY LAW. 

§ 223. Short forms of deeds and mortgages. 

The use- of the following forms of Instruments for the convey- 
ance and mortgage of real property is lawful, but this section 
does not prevent or invalidate the use of other forms: 



SCHEDULE A. 
DEED WITH FULL COVENANTS. 

This indenture, made the day of , in 

the year eighteen hundred and , between 

of (insert residence) of the first part, and of (in- 
sert residence) of the second part. 

Witnesseth, that the said party of the first part, in considera- 
tion of dollars lawful money of the United States, 

paid by the party of the second part, doth hereby grant and re- 
lease unto the said party of the second part, his heirs and as- 
signs forever (description), together with the appurtenances and 
all the estate and rights of the party of the first part in and to 
said premises. 

To hav-3 and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. And 
the said party of the first part doth covenant with said party of 
the second part as follows: 

First. That the party of the first part is seized of said prem- 
ises in fee simple, and has good right to convey the same. 

Second. That the party of the second part shall quietly enjoy 
the said premises. 

Third. That the said premises are free from encumbrances. 

Fourth. That the party of the first part will execute or pro- 
cure any further necessary assurance of the title to said prem- 
ises. 

Fifth. That the party of the first part will forever warrant the 
title to said premises. 

In witness whereof, the said party of the fii:st part hath here- 
unto set his hand and seal the day and year first above written. 

In presence of: 



SCHEDULE B. 
EXECUTOR'S DEED. 

This indenture, made the day of , eighteen hun- 
dred ani between as executor of the last 

will and testament of , late of , deceased, of 

the first part, and , of the second part, witnesseth: 

That the said party of the first part, by virtue of the power 
and authority to him given in and by the said last will and 



THE REAL PROPERTY LAW. 103 

testament, and in consideration of dollars, lawful 

money of the United States, paid by the said party of the sec- 
ond part, doth hereby grant and release unto the said party of 
the second part, his heirs and assigns forever (description) to- 
gether with the appurtenances, and also all the estate which the 
said testator had at the time of his decease in said premises, and 
also the estate therein, which the said party of the first part has 
or has power to dispose of, whether individually, or by virtue of 
said will or otherwise. 

To have and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. 

And the said party of the first part covenants with said party 
of the second part that the party of the first part has not done 
or suffered anything whereby the said premises have been en- 
cumbered in any way whatever. 

In witness whereof the said party of the first part has here- 
unto set his hand and seal the day and year first above written. 

In presence of: 



SCHEDULE C. 
MORTGAGE. 

This indenture, made the day of , in the year 

eighteen hundred and , between of , 

party of the first part, and of , party of the 

second part 

Whereas, the said is justly indebted to the said party 

of the second part in the sum of dollars, lawful money 

of the United States, secured to be paid by his certain bond or 
obligation, bearing even date herewith, conditioned for the pay- 
ment of the said sum of dollars, on the day 

of , eighteen hundred and , and the interest 

thereon, to be computed from at the rate of per 

centum per annum and to be paid 

It being thereby expressly agreed that the whole of the said 
principal sum shall become due after default in the payment of 
interest, taxes or assessments, as hereinafter provided. 

Now this indenture witnesseth, that the said party of the first 
part, for the better securing the payment of the said sum of 
money mentioned in the condition of the said bond or obligation. 



104 THE REAL. PROPERTY LAW. 

with interest thereon, and also for and in consideration of one 
dollar, paid by the said party of the second part, the receipt 
whereof is hereby acknowledged, doth hereby grant and release 
unto the said party of the second part, and to his heirs (or suc- 
cessors) and assigns forever (description), together with the ap- 
purtenances, and all the estate and rights of the party of the 
first part in and to said premises. 

To have and to hold the above granted premises unto the said 
party of the second part, his heirs and assigns forever. 

Provided always, that if the said party of the first part, his 
heirs, executors or administrators, shall pay unto the said party 
of the second part, his executors, administrators or assigns, the 
said sum of money mentioned in the condition of the said bond 
or obligation, and the interest thereon, at the time and in the 
manner mentioned in the said condition, that then these pres- 
ents, and the estate hereby granted, shall cease, determine and 
be void. 

And the said party of the first part covenants with the party 
of the second part as follows: 

1. That the party of the first part will pay the indebtedness 
as hereinbefore provided, and if default be made in the payment 
of any part thereof, the party of the second part shall have 
power to sell the premises therein described according to law. 

2. That the party of the first part will keep the buildings on 
the said premises insured against loss by fire for the benefit of 
the mortgagee. 

3. And it is hereby expressly agreed that the whole of said 
principal sum shall become due at the option of the said party 
of the second part after default in the payment of interest for 
days, or after default in the payment of any tax or assess- 
ment for days, after notice and demand. 

In witness whereof, the said party of the first part hath here- 
unto set his hand and seal, the day and year first above written. 
In the presence of: 



THE REAL PROPERTY LAW. 105 

§ 224. When contract to lease or sell void. 

A contract for the leasing for a longer period than one year, 
or for the sale of any real property, or an interest therein, is 
void, unless the contract, or some note or memorandum thereof, 
expressing the consideration, is in writing, subscribed by the 
lessor or grantor, or by his lawfully authorized agent. 

§ 225. Effect of grant or mortgage of real property adversely 
possessed. 
A grant of real property is absolutely void, if at the time of 
the delivery thereof, such property is in the actual possession 
of a person claiming under a title adverse to that of the grantor; 
but such possession does not prevent the mortgaging of such 
property, and such mortgage, if duly recorded, binds the prop- 
erty from the time the possession thereof is recovered by the 
mortgagor or his representatives, and has preference over any 
judgment or other instrument, subsequent to the recording 
thereof; and if there are two or more such mortgages, they sev- 
erally have preference according to the time of recording there- 
of, respectively. 

§ 226. Conveyances with intent to defraud purchasers and en- 
cumbrancers void. 
A conveyance of an estate or interest in resd property, or the 
rents and profits thereof, and every charge thereon, made or 
created with intent to defraud prior or subsequent purchasers 
or encumbrancers, for a valuable consideration, of the same real 
property, rents or profits, is void as against such purchasers 
and encumbrancers. Such a conveyance or charge shall not be 
deemed fraudulent in favor of a subsequent purchaser or en- 
cumbrancer, who, at the time of his purchase or encumbrance, 
has actual or legal notice thereof, unless it appears that the 
grantee in the conveyance, or the person to be benefited by the 
charge was privy to the fraud intended. 

§ 227. Conveyances with intent to defraud creditors void. 

A conveyance or assignment in writing or otherwise, of an 
estate, interest, or existing trust in real property, or the rents 
or profits issuing therefrom, or a charge on real property, or on 
the rents or profits thereof, made with the intent to hinder, de- 
lay or defraud creditors, or other persons, of their lawful suits, 
damages, forfeitures, debts or demands, or a bond or other evi- 
dence of debt given, suit commenced or decree or judgment suf- 
fered, with the like intent, is void as against every person so 
hindered, delayed or defrauded. 

§ 228. Conveyances void as to creditors, purchasers and encum- 
brancers, void as to heirs and assigns. 
A conveyance, charge, instrument or proceeding, declared by 



106 THH REAL PROPERTY LAW. 

this article to be void as against creditors, purchasers or encum- 
brancers, is equally void as against their heirs, successors, per- 
sonal representatives or assigns. 
§ 229. Fraudulent intent, question of fact. 

The question of fraudulent intent in a case arising under this 
article, shall be deemed a question of fact and not of law; and 
a conveyance or charge shall not be adjudged fraudulent as 
against creditors, purchasers or encumbrancers, solely on the 
ground that it was not founded on a valuable consideration. 
§ 230. Rights of purchaser or encumbrancer for valuable con- 
sideration protected. 

This article does not in any manner affect or impair the title 
of a purchaser or encumbrancer for a valuable consideration, 
unless it appears that he had previous notice of the fraudulent 
intent of his immediate grantor, or of the fraud rendering void 
the title of such grantor. 
§ 231. Conveyances with power to revoke, determine or alter. 

A corveyance of or charge on an estate or interest in real 
property, containing a provision for the revocation, determina- 
tion or alteration of the estate or interest, or any part thereof, 
at the will of the grantor, is void, as against subsequent pur- 
chasers and encumbrancers, from the grantor, for a valuable 
consideration, of any estate or interest so liable to be revoked 
or determined, although the same be not expressly revoked, 
determined or altered by the grantor, by virtue of the power 
reserved or expressed in the prior conveyance or charge. 

Where a power to revoke a conveyance of real property or the 
rents and profits thereof, and to reconvey the same, is given to 
any person, other than the grantor in such conveyance, and such 
person thereafter conveys the same real property, rents or prof- 
its to a purchaser or encumbrancer for a valuable consideration, 
such subsequent conveyance is valid, in the same manner and to 
the same extent as if the power of revocation were recited there- 
in, and the intent to revoke the former conveyance expressly 
declared. 

If a conveyance to a purchaser or encumbrancer, under this 
section, be made before the person making it is entitled to exe- 
cute his power of revocation, it is nevertheless valid, from the 
time the power of revocation actually vests in such person, in 
the same manner, and to the same extent, as if then made. 
§ 232. Disaffirmance of fraudulent act by executor and others. 

An executor, administrator, receiver, assignee or other trus- 
tee, may, for the benefit of creditors, or of others interested in 
real property held in trust, disaffirm, treat as void and resist any 



THE REAL PROPERTY LAW. 107 

act done or transfer or agreement made in fraud of the rights 
of any creditor, including himself, interested in such estate or 
property; and a person who fraudulently receives, takes, or in 
any manner interferes with the real property of a deceased per- 
son, or an insolvent corporation, association, partnership, or indi- 
vidual, is liable to such executor, administrator, receiver or 
other trustee for the same, or the value thereof, and for all dam- 
ages caused by such act to the trust estate. 

A creditor of a deceased insolvent debtor, having a claim or 
demand exceeding one hundred dollars against such deceased, 
may, for the benefit of creditors or others interested in the real 
property of such deceased, disaffirm, treat as void, and resist 
any act done or conveyance, transfer or agreement made by 
such deceased in fraud of the rights of any creditor, including 
himself, and may maintain an action to set aside such act, con- 
veyance, transfer or agreement, without having first obtained 
a judgment on such claim or demand; but the same, if disputed, 
may be established on the trial. The judgment in such action 
may provide for the sale of the premises or property involved, 
when a conveyance or transfer thereof is set aside, and that the 
proceeds thereof be brought into court or paid into the proper 
surrogate's court to be administered according to law. 

§ 233. When remainderman may pay interest owed by life 
tenant. 

Whenever real property held by any person for life is encum- 
bered by mortgage or other lien, the Interest on which should 
be paid by the life tenant, and such life tenant neglects or re- 
fuses to pay such interest, the remainderman may pay such in- 
terest, and recover the amount thereof, together with interest 
thereon from the time of such jiayment, of the life tenant. 
§ 234. Powers of courts of equity not abridged. 

Nothing contained in this article abridges the powers of courts 
of equity to compel the specific performance of agreements in 
cases of part performance. 



ARTICLE VIII. 

RECORDING INSTRUMENTS AFFECTING REAL 
PROPERTY. 
Section 240. Definitions; effect of article. 

241. Recording of conveyances. 

242. By whom conveyance must be acknowledged or 

proved. 

243. Recording of conveyances heretofore acknowledged 

or proved. 

244. Recording executory contracts and powers of at- 

torney. 

245. Recording of letters patent. 

246. Recording copies of instruments which are in sec- 

retary of state's office. 

247. Certified copies may be recorded. 

248. Acknowledgments and proofs within the state. 

249. Acknowledgments and proofs in other states. 

250. Acknowledgments and proofs in foreign countries. 

251. Acknowledgments and proofs by married women. 

252. Requisites of acknowledgments. 

253. Proof by subscribing witness. 

254. Compelling witnesses to testify. 

255. Certificate of acknowledgment or proof. 

256. When certificate to state time and place. 

257. When certificate must be under seal. 

258. Acknowledgment by corporation and form of cer- 

tificate. 

259. When county clerk's authentication necessary. 

260. When other authentication necessary. 

261. Contents of certificate of authentication. 

262. Recording of conveyances acknowledged or proved 

without the state, when parties and certifying 
officer are dead. 

263. Proof where witnesses are dead. 

264. Recording books. 

265. Indexes. 

266. Order of recording. 

267. Certificate to be recorded. 

268. Time of recording. 

269. Certain deeds deemed mortgages. 

270. Recording discharge of mortgage. 

271. Effect of recording assignment of mortgage. 

272. Recording of conveyances made by treasurer of 

Connecticut. 

273. Revocation to be recorded. 

274. Penalty for using long forms of covenants. 

275. Certain acts not affected. 

276. Actions to have certain instruments cancelled of 

record. 

277. Officers guilty of malfeasance liable for damages. 



THE REAL PROPERTY LAW. j 109 

§ 240. Definitions; effect of article. 

The term "real property" as used in this article, includes 
lands, tenements and hereditaments and chattels real, except a 
lease for a term not exceeding three years. The term "pur- 
chaser," includes every person to whom any estate or interest 
in real property is conveyed for a valuable consideration, and 
every assignee of a mortgage, lease or other conditional estate. 
The term "conveyance," includes every written instrument, hy 
which any estate or interest in real property is created, trans- 
ferred, mortgaged or assigned, or by which the title to any real 
property may be affected, including an instrument in execution 
of a power, and although the power be one of revocation only; 
except a will, a lease for a term not exceeding three years, 
an executory contract for the sale or purchase of lands, and an 
instrument containing a power to convey real property as the 
agent or attorney for the owner of such property. The term 
"recording officer," means the county clerk of the county, ex- 
cept in the counties of New York, Kings or Westchester, where 
it means th^ register of the county. 

This article does not apply to leases for life or lives, or for 
years, heretofore made, of lands in either of the counties of Al- 
bany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Dela- 
ware or Schenectady. 
§ 241. Recording of conveyances. 

A conveyance of real property, within the state, on being duly 
acknowledged by the person executing the same, or proved as 
required by this chapter, may be recorded in the office of the 
clerk of the county where such real property is situated. Every 
such conveyance not so recorded is void as against any sub- 
sequent purchaser in good faith and for a valuable considera- 
tion, from the same vendor, his heirs or devisees, of the same 
real property or any portion thereof, whose conveyance is first 
duly recorded. 

§ 242. By whom conveyance must be acknowledged or proved. 

Except as otherwise provided by this article, such acknowl- 
edgment can be made only by the person who executed the con- 
veyance, and such proof can be made only by some other per- 
son, who was a witness of its execution, and at the same time 
subscribed his name to the conveyance as a witness. 

§ 243. Recording of conveyances heretofore acknowledged or 
proved. 
A conveyance of real property, within the state, heretofore 
executed, and heretofore acknowledged or proved, and certi- 
fied, so as to be entitled to be read in evidence, or recorded, un- 
der the laws in force at the time when so acknowledged or 
proved, but which has not been recorded is entitled to be 



110 THE REAL PROPERTY LAW. 

read in evidence, and recorded in the same manner, and with the 
like effect, as if this chapter had not been passed. 

If heretofore executed, but not proved or acknowledged, it 
may be proved or acknowledged in the same manner as convey- 
ances hereafter executed and with like effect. 

§ 244. Recording executory contracts and powers of attorney. 

An executory contract for the sale or purchase of real prop- 
erty, or an instrument containing a power to convey real prop- 
erty, as the agent or attorney for the owner of the property, 
acknowledged or proved, and certified, in the manner to entitle 
a conveyance to be recorded, may be recorded by the recording 
officer of any county in which any of the real property to which 
it relates is situated. 

§ 245. Recording of letters patent. 

Letters patent, issued under the great seal of the state, grant- 
ing real property, may be recorded in the county where such 
property is situated, in the same manner and with like effect, 
as a conveyance duly acknowledged or proved and certified so 
as to entitle it to be recorded. 

§ 246. Recording copies of instruments which are in secretary 
of state's office. 

A copy of an instrument affecting real property, within the 
state, recorded or filed in the office of the secretary of state, 
certified in the manner required to entitle the same to be read 
in evidence, may be recorded with such certificate, in the office 
of any recording officer of the state. 

§ 247. Certified copies may be recorded. 

A copy of a record, or of any recorded instrument, certified or 
authenticated so as to be entitled to be read in evidence, may 
be again recorded in any office where the original would be en- 
titled to be recorded. Such record has the same effect as if the 
original were so recorded. A copy of a conveyance or mortgage 
affecting separate parcels of real property situated in different 
counties, or of the record of such conveyance or mortgage in 
one of such counties, certified or authenticated so as to be enti- 
tled to be read in evidence, may be recorded in any county in 
which any such parcel is situated, with the same effect as if the 
original instrument authenticated as required by section two 
hundred and fifty-nine of this chapter were so recorded. 

§ 248. Acknowledgments and proofs within the state. 

The acknowledgment or proof of a conveyance of real prop- 
erty within the state may be made at any place within the state, 
before a justice of the supreme court; or within the district 



THB REAL PROPERTT LAW. ,111 

wherein such officer is authorized to perform official duties, be- 
fore a judge, clerk, deputy clerk, or special deputy clerk of a 
court, a notary public, or the mayor or recorder of a city, a Jus- 
tice of the peace, surrogate, special surrogate, special county 
judge, or commissioner of deeds. 
§ 249. Acknowledgments and proofs in other states. 

The acknowledgment or proof of a conveyance of real prop- 
erty, within the state, may be made without the state, but with- 
in the United States, before either of the following officers act- 
ing within his jurisdiction, or of the court to which he belongs: 

1. A judge of the supreme court, of the circuit court of ap- 
peals, of the circuit court, or of the district court of the United 
States. 

2. A judge of the supreme, superior, or circuit court of a state. 

3. A mayor of a city. 

4. A commissioner appointed for the purpose by the governor 
of the state. 

5. Any officer of a state, authorized by the laws thereof to 
take the acknowledgment or proof of deeds to be recorded 
therein. 

§ 250. Acknowledgments and proofs in foreign countries. 

The acknowledgment and proof of a conveyance of real prop- 
erty within the state, may be made without the United States 
before either of the following officers: 

1. An ambassador, a minister plenipotentiary, minister ex- 
traordinary, minister resident, or charge des afCairs of the Uni- 
ted States, residing and accredited within the country. 

2. A consul-general, vice-consul or deputy consul, a consu- 
lar or vice-consular agent, or a consul or commercial or vice- 
comm(«rcial agent of the United States, residing within the 
country. 

3. A commissioner appointed for the purpose by the governor, 
and acting within his own jurisdiction. 

4. A person specially authorized for that purpose by a com- 
mission, under the seal of the supreme court, issued to a reputa- 
ble person, residing in or going to the country where the ac- 
knowledgment or proof is so to be taken. 

5. If within the dominion of Canada, it may also be made be- 
fore any judge of a court of record; or before any officer of such 
dominion authorized by the laws thereof to take the acknowl- 
edgment or proof of deeds to be recorded therein. 

6. If within the United Kingdom of Great Gritain and Ireland 
or the dominions thereunto belonging, it may also be made be- 
fore the mayor, provost or other chief magistrate of a city or 
town therein. , '. 



112 THE REAL PROPERTY LAW. 

§ 251. Acknowledgments and proofs by married women. 

The acknowledgment or proof of a conveyance of real prap- 
erty, within the state, or of any other written instrument, may 
be made by a married woman the same as if unmarried. 

§ 252. Requisites of acknowledgments. 

An acknowledgment must not be taken by any officer unless 
he knows or has satisfactory evidence, that the person makinj; 
it is the person described in and who executed such instrument. 

J 253. Proof by subscribing witness. 

Where the execution of a conveyance is proved by a subscrib- 
ing witness, such witness must state his own place of residence, 
and that he knew the person described in and who executed the 
conveyance. 

The proof must not be taken unless the officer is personally 
acquainted with such witness, or has satisfactory evidence that 
he is the same person, who was a subscribing witness to the 
conveyance. 

§ 254. Compelling witnesses to testify. 

On the application of a grantee in a conveyance, his heir or 
personal representative, or of a person claiming under either ©f 
them, verified by the oath of the applicant, stating that a witness 
to the conveyance, residing in the county where the application 
is made, refuses to appear and testify concerning its execution, 
and that such conveyance can not be proved without his testi- 
mony, any officer authorized to take, within the state, acknowl- 
edgment or proof of conveyance of real property may issue a 
subpoena, requiring such witness to attend and testify before 
him concerning the execution of the conveyance. A person who, 
on being duly served with such a subpoena, without reasonable 
cause refuses or neglects to attend or refuses to answer under 
oath concerning the execution of such conveyance, forfeits to 
the person injured one hundred dollars; and may also be com- 
mitted to prison by the officer who issued the subpoena, ther* 
to remain without bail, and without the liberties of the jail, oa- 
til he answers under oath as required by this section. 

§ 255. Certificate of acknowledgment or proof. 

An ©tCcer taking the acknowledgment or proof of a convey- 
ance must indorse thereupon or attach thereto, a certificate, 
signed by himself, stating all the matters required to be done, 
known or proved on the taking of such acknowledgment or 
proof; together with the name and substance of the testimony 
of each witness examined before him, and if a subscribing wit- 
ness, his place of residence. 



THE REAL PROPERTY LAW. 113 

§ 256. When certificate to state time and place. 

Where the acknowledgment or proof is taken by a commis- 
sioner appointed by the governor, for a city or county within 
the United States, and without the state, the certificate must 
also state the day on which, and the city or town or county in 
whicli the same was taken. 

§ 257. When certificate must be under seal. 

Where a certificate of acknowledgment or proof is made by a 
commissioner appointed by the governor, or by the mayor or 
other chief magistrate of a city or town without the United 
States, or by a minister, charge des affairs, consul-general, vice- 
consul or deputy consul, consular or vice-consular agent, or con- 
sul or commercial or vice-commercial agent, of the United States, 
it must be under his seal of oflace, or the seal of the consulate to 
which he is attached. 

All acknowledgments or proofs of deeds, mortgages or other 
insti-unients relating to real property, the certificates of which 
were made in the form required by the laws of this state, by a 
vice-consul, deputy-consul, consular agent, vice-consular agent, 
consul or commercial agent or vice-commercial agent of the 
United States prior to the fourteenth day of April, eighteen hun- 
dred and sixty-five, have been confirmed. 

§ 258. Acknowledgment by corporation and form of certificate. 
The acknowledgment of a conveyance or other instrument 
by a corporation, must be made by some officer thereof author- 
ized to execute the same by the board of directors of said cor- 
poration. The certificate of acknowledgment must be in sub- 
stantially the following form, the blanks being properly filled: 

Stat .3 of New York, 
County of 



O^ the day of in the year , 

before me personally came to me known, who, being 

l»y me duly sworn, did depose and say that he resided in ; 

that he is the (president or other officer) of the (name of corpora- 
tion), the corporation described in and which executed the 
above instrument; that he knew the seal of said corporation; 
that the seal affixed to said instrument was such corporate seal; 
that it was so affixed by order of the board of directors of said 
corporation, and that he signed his name thereto by like order. 
(Signature and office of officer taking acknowledgment.) 

If such corpoi-ation have no seal, that fact must be stated in 
place of the statements required respecting the seal. 



114 THB REAL PROPERTY LAW. • 

§ 259. When county clerk's authentication necessary. 

A certificate of aclcnowledgment or proof, made within the 
state, by a commissioner of deeds, justice of the peace, or, ex- 
cept as otherwise provided by law, by a notary public, does not 
entitle the conveyance to be read in evidence or recorded, ex- 
cept within the county in which the officer resides at the time 
of making such certificate, unless authenticated by a certificate 
of the clerk of the same county. But this section does not applj 
to a conveyance executed by an agent for the Holland Land 
company, or of the Pulteney estate, lawfully authorized to con- 
vey real property. 

§ 260. When other authentication necessary. 

In the following cases a certificate of acknowledgment or 
proof is not entitled to be read in evidence or recorded unless 
authenticated by the following officers, respectively: 

1. Where the original certificate of acknowledgment or proof 
is made by a commissioner appointed by the governor, by the 
secretary of state. 

2, Where made by a judge of a court of record in Canada, by 
the clerk of the court. 

-3. WJiere made by the officer of a state of the United States, 
5? of the dominion of Canada authorized by the laws thereof to 
take the acknowledgment or proof of deeds to be recorded there- 
in, by the secretary of state of the state, or the clerk, register, 
recorder or prothonotary of the county in which the officer mak- 
ing the original certificate resided, when the certificate was 
made, or by the clerk of any court of that county, having by 
law a seal. 
§ 261. Contents of certificate of authentication. 

An officer authenticating a certificate of acknowledgment or 
proof must subjoin or attach to the original certificate a certifi- 
cate under his hand, and if lie has, pursuant to law, an official 
seal, under such seal. Except when the original certificate is 
made by a judge of a court of record in Canada, such certificate 
of authentication must specify that, at the time of taking the 
acknowledgment or proof, the officer taking it was duly author- 
iaed to take the same; that the authenticating officer is ac- 
quainted with the former's handwriting, or has compared the 
signature to the original certificate with that deposited in his 
office by such officer; and that he verily believes the signature 
to the original certificate is genuine; and if the original certifi- 
cate is required to be under seal, he must also certify that he 
has compared the impression of the seal affixed thereto with the 
impression of the seal of the officer who took the acknowledg- 
ment or proof deposited in his office, and that he verily believes 
the im-prosslon of the seal upon the original certificate is gen- 
• ulne. 



THE REAL PROPERTY LAW. 115 

A clerk's certificate authenticating a certificate of acknowl^ 
edgment or proof, taken before a judge of a court of record in 
Canada, must specify that there is such a court; that the judge 
l)efore whom the acknowledgment of proof was taken, was, 
when it was taken, a judge thereof; that such court has a 
seal; that the officer authenticating is clerk thereof; that he is 
well acquainted with the handwriting of such judge, and verily 
believes his signature is genuine. 

J 262. Recording of conveyances acknowledged or proved with- 
out the state, wEere parties and certifying officer are 
dead. 

Where the execution of a conveyance of real property within 
this state is acknowledged or proved according to the laws of 
any other state of the United States, and a certificate of the 
acknowledgment or proof signed by the officer taking it is an- 
nexed to or indorsed upon the instrument, if such officer and 
the grantor or mortgagor be dead and the death of all of them 
be proved by affidavit, sworn to in such state before an officer 
authorized by its laws to administer an oath therein, the con- 
veyance, with the affidavit or affidavits annexed thereto, on 
being authenticated as required by this section, may be read in 
evidence and recorded in the same manner, and with like effect, 
as if the conveyance was acknowledged or proved and certi- 
fied as required by the laws of this state. 

To entitle such conveyance and affidavits to be read in evi- 
dence, or recorded, a certificate of the clerk, recorder, register 
or prothonotary of the county in which the deceased officer re- 
sided, authenticating his signature, and also certifying that the 
conveyance is acknowledged or proved in all respects, as re- 
quired by the laws of such state, must be annexed to the origi- 
nal certificate; and a like certificate of such clerk, recorder, reg- 
ister or prothonotary, authenticating the signature of the officer, 
before whom the affidavits proving the deaths were taken, must 
be annexed to such affidavits. The affidavits on being recorded, 
are presumptive evidence of the matters of fact, required to 
be stated therein. 
§ 263. Proof where witnesses are dead. 

Where the witnesses to a conveyance, authorized to be re- 
corded, are dead, its execution may be proved before any officer 
authorized to take within the state the acknowledgment and 
proof of conveyances, other than a commissioner of deeds, a 
notary public, or a justice of the peace. The proof of the exe- 
cution must be made by satisfactory evidence of the death of all 
the witnesses thereto, and of the handwriting of such witnesses, 
or any one of them, and of the grantor, which evidence, with 
the name and residence of each witness examined, must be mi 



116 THE REAL PROPERTY LAW. 

forrth by the officer taking the same, in his certificate of proof. 
A conveyance so proved, and certified, may be recorded in the 
proper office, if the original conveyance be at the same time de- 
posited in the same office, there to remain for the inspection of 
all persons desiring to examine the same. If the conveyance 
affects real property in two or more counties, a certified copy of 
the conveyance, vrith the proof and certificates, may be re- 
corded in each of such counties. Such recording and deposit are 
constructive notice of the execution of such conveyance to all 
purchasers of the same real property, or any part thereof, 
from the same ven'dor, his heirs or assigns, subsequent to 
such recording, but do not entitle the conveyance or the record 
thereof, or a transcript of the record to be read in evidence. 

§ 264. Recording books. 

Different sets of books must be provided by the recording of- 
ficer of each county, for the recording of deeds and mortgages; 
in one of which sets, he must record all conveyances and other 
instruments absolute in their terms delivered to him, pursuant 
to law, to be so recorded, which are not intended as mortgages, 
or securities in the nature of mortgages, and in the other set, 
such mortgages and securities delivered to him. 

§ 265. Indexes. 

Bach recording officer must provide, at the expense of his 
county, proper books for making general indexes of instruments 
recorded in his office, and must form indexes therein, so as to 
afford correct and easy reference to the books of record in his 
office. There must be one set of indexes for mortgages or se- 
curities in the nature of mortgages, and another set for convey- 
ances and other instruments not intended as such mortgages or 
securities. Each set must contain two lists in alphabetical or- 
der, one consisting of the names of the grantors or mortgagors, 
followed by the names of th<4r grantees or mortgagees, and the 
other list consisting of the names of the grantees or mortgagees, 
followed by the names of their grantors or mortgagors, with 
proper blanks in each class of names, for subsequent entries, 
which entries must be made as instruments are delivered for 
record. 

This section, so far as relates to the preparation of new in- 
dexc's, shall not apply to a county where the recording officer 
now has general numerical indexes. 

A recording officer who records a conveyance of real property, 
sold by virtue of an execution, or by a sheriff, referee or other 
peraon, pursuant to a judgment, the granting clause whereof 
states whose right, title or interest was sold, must insert in the 
proper index, under the head "grantors," the name of the officer 



THH REAL PROPERTY LAW. 117 

executing the conreyance, and of each person whose right, title 
or interest is so stated to hare been sold. 

§ 266. Order of recording. 

Every instrument, entitled to be recorded, must be recorded 
by the recording officer in the order and as of the time of ita de- 
livery to him therefor, and is considered recorded from the time 
of such delivery. 

I 267. Certificate to be recorded. 

The certificate of the acknowledgment or proof of the execu- 
tion of an instrument, and the certificate authenticating the sig- 
nature or seal of the officer so certifying, or both, if required, 
must be recorded together with the instrument so acknowl- 
edged or proved; otherwise neither the record of the instrument 
nor a transcript thereof can be read in evidence. 

§ 268. Time of recording. 

The recording officer must make an entry in the record, im- 
mediately after the copy of every instrument recorded by him, 
stating the hour, day, month and year, when it was recorded, 
and must indorse upon every such instrument a certificate, stat- 
ing the time as aforesaid, when, and the book and page where, 
the same was recorded. 

§ 269. Certain deeds deemed mortgages. 

A deed conveying real property, which, by any other written 
instrument, appears to be intended only as a security In the 
nature of a mortgage, although an absolute conveyance in 
terms, must be considered a mortgage; and the person for whose 
benefit such deed is made, derives no advantage from the re- 
cording thereof, unless every writing, operating as a defeasance 
of the same, or explanatory of its being desired to have the ef- 
fect only of a mortgage, or conditional deed, is also recorded 
therewith, and at the same time. 

I 270. Recording discharge of mortgage. 

A mortgage, registered or recorded, must be discharged upon 
the record thereof, by the recording officer, when there is pre- 
sented to him a certificate signed by the mortgagee, his per- 
sonal representative or assignee, and acknowledged or proved, 
and certified, in like manner as to entitle a conveyance to be 
recorded, specifying that the mortgage has been paid, or other- 
wise satisfied and discharged. The certificate of discharge, and 
the certificates of its acknowledgment or proof, must be re- 
corded; and a reference must be made to the book and page con- 
taining such record, in the minute of the discharge of such 
mortgage, made by the officer upon the record thereof. 



118 THE REAL PROPERTY LAW. 

§ 271. Effect of recording assignment of mortgage. 

The recording of an assignment of a mortgage is not in it- 
self, a notice of such assignment to a mortgagor, his heire or 
personal representatives, so as to invalidate a payment made hy 
either of them to the mortgagee. 

§ 272. Recording of conveyances made by treasurer of Connec- 
ticut. 

A conveyance of real property, executed at any time since 
the tenth day of March, eighteen hundred and twenty-five, hy 
the treasurer of the state of Connecticut, acknowledged by him 
before the secretary of state of such state, and the acknowl- 
edgment of which is certified by such secretary of state under 
the seal of such state, in the manner required for the acknowl- 
edgment and certification of a conveyance within this state, may 
be recorded in the proper office within this state, without fur- 
ther proof thereof. 

§ 273. Revocation to be recorded. 

A power of attorney or other instrument, recorded pursuant 
to this article, is not deemed revoked by any act of the party by 
whom it was executed, unless the instrument containing such 
revocation is also recorded in the same office in which the instru- 
ment containing the power was recorded. 

§ 274. Penalty for using long forms of covenants. 

The recording officer of any county may charge for the re- 
cording of an instrument containing any of the covenants 
mentioned in sections two hundred and eighteen and two hun- 
dred and nineteen of this chapter, at large, instead of the short 
forms thereof, in said sections contained, the sum of five dol- 
lars in addition to the fees chargeable by law for such record- 
ing. 

§ 275. Certain acts not affected. 

Nothing contained in this article repeals or affects any act 
providing for recording and indexing instruments affecting real 
property in the city of New York, according to city blocks or 
other limited areas. 

§ 276. Actions to have certain instruments cancelled of record. 

An owner of real property or of any undivided part thereof 
or interest therein, may maintain an action to have any re- 
corded instrument in writing relating to the same, other than 
those required by law to be recorded, declared void or invalid, 
or to have the same cancelled of record as to said real prop- 
erty, or his undivided part thereof or interest therein. 



THE REAL PROPERTY LAW. 119 

§ 277. Officers guilty of malfeasance liable for damages. 

An officer authorized to take the acknowledgment or proof of 
a conveyance or other instrument, or to certify such proof or 
acknowledgment, or to record the same, who is guilty of mal- 
feasance or fraudulent practice in the execution of any duty 
preicribe.i by law in relation thereto, is liable in damages to the 
person injured. 



ARTICLE IX. 
DESCENT OF REAL PROPERTY. 

Section 280. Definitions and use of terms; effect of article. 

281. General rule of descent. 

282. Lineal descendants of equal degree. 

283. Lineal descendants of unequal degree. 

284. When father inherits. 

286. When collateral relatives inherit; collateral rela- 

tives of equal degrees. 

287. Brothers and sisters and their descendants. 

288. Brothers and sisters of father and mother and their 

descendants. 

289. Illegitimate children. 

290. Relatives of the half-blood. 

291. Cases not hereinbefore provided for. 

292. Posthumous children and relatives. 

293. Inheritance, sole or in common. 

294. Alienism of ancestor. 

295. Advancements. 

296. Hovr advancements adjusted. 



THE REAL PROPERTY LAW. 121 

§ 280. Definitions and use of terms; effect of article. 

The term "real property" as used in this article, includes 
every estate, interest and right, legal and equitable in lands, ten- 
ements and hereditaments except such as are determined or ex- 
tinguished by the death of an intestate seized or possessed 
thereof, or in any manner entitled thereto; leases for years, es- 
tates for the life of another person; and real property held in 
trust, not derised by the beneficiary. "Inheritance," means real 
property as herein defined, descended according to the proTi- 
sions of this article; the expressions "where the inheritance shall 
have come to the intestate on the part of the father" or 
"mother," as the case may be, include ererj case where the in- 
heritance shall have come to the intestate by devise, gift or de- 
scent from the parent referred to, or from any relatiye of the 
blood of such parent. 

When in this article a person is described as living, it means 
living at the time of the death of the intestate from whom the 
descent came; when he is described as having died, it means 
that he died before such intestate. 

This article does not affect a limitation of an estate by deed 
or will, or tenancy by the curtesy or dower. 

§ 281. General rule of descent. 

The real property of a person who dies without devising the 
same shall descend: 

1. To his lineal descendants. 

2. To his father. 

3. To his mother; and 

4. To his collateral relatives, 

as prescribed in the following sections of this article. 
$ 282. Lineal descendants of equal degree. 

If the intestate leave descendants in the direct line of lineal 
descent, all of equal degree of consanguinity to him, the inheri- 
tance shall descend to them in equal parts however remote from 
him the common degree of consanguinity may be. 

§ 283. Lineal descendants of unequal degree. 

If any of the descendants of such intestate be liying, and any 
be dead, the inheritance shall descend to the living, and the 
descerdfints of the dead, so that each living descendant shall 
inherit such share as would have descended to him had all the 
descendants in the same degree of consanguinity who shall hare 
died leaving issue been living; and so that issue of the descend- 
ants who shall have died shall respectively take the shares 
which their ancestor would have received. 



122 THE REAL PROPERTY LAW. 

§ 284. When father inherits. 

If the intestate die without lawful descendants, and leave a. 
father, the inheritance shall go to such father, unless the inher- 
itance came to the Intestate on the part of his mother, and she 
be living; if she be dead, the inheritance descending on her part 
shall go to the father for life, and the reversion to the brother*) 
and sisters of the intestate and their descendants, according to 
the law of inheritance by collateral relatives hereinafter pro- 
vided; If there be no such brothers or sisters or their descend- 
ants living, such inheritance shall descend to the father in fee. 

§ 285. When mother inherits. 

If the intestate die without descendants and leave no father, 
or leave a father not entitled to take the inheritance under the 
last section, and leave a mother, and a brother or sister, or the 
descendant of a brother or sister, the inheritance shall descend 
to the mother for life, and the reversion to such brothers and 
sisters of the intestate as may be living, and the descendants 
of such as may be dead, according to the same law of inheri- 
tance hereinafter provided. If the intestate In such case leave 
no brother or sister or descendant thereof, the inheritance shall 
descend to the mother in fee. 

§ 286. When collateral relatives inherit; collateral relatives of 
equal degrees. 

If there be no father or mother capable of inheriting the es- 
tate, it shall descend in the cases hereinafter specified to the col- 
lateral relatives of the intestate; and if there be several such 
relatives, all of equal degree of consanguinity to the intestate, 
the inheritance shall descend to them in equal parts, however 
remote from him the common degree of consanguinity may be. 

J 287. Brothers and sisters and their descendajits. 

If all the brothers and sisters of the intestate be living, the 
Inheritance shall descend to them; if any of them be living and 
any be dead, to the brothers and sisters living, and the descend- 
ants, in whatever degree, of those dead; so that each living 
brother or sister shall inherit such share as would have de- 
scended to him or her if all the brothers and sisters of the intes- 
tate who shall have died, leaving issue, had been living, and so 
that such descendants in whatever degree shall inherit the share 
which their parent would have received if living; and the same 
rule shall prevail as to all direct lineal descendants of every 
brother and sister of the intestate whenever such descendants 
are of unequal degrees. 



THE REAL PROPERTY LAW. 123 

§ 288. Brothers and sisters of father and mother and their de- 
scendants. 
If there be no heir entitled to take, under either of the pre- 
ceding sections, the inheritance, if it shall have come to the in- 
testate on the part of his father, shall descend: 

1. To the brothers and sisters of the father of the intestate in 
equal shares, if all be living: 

2. If any be living, and any shall have died, leaving issue, to 
such brothers and sisters as shall be living and to the descend- 
ants of such as shall have died. 

3. If all such brothers and sisters shall have died, to their 
descendants. 

4. If there be no such brothers or sisters of such father, nor 
any descendants of such brothers or sisters, to the brothers and 
sisters of the mother of the intestate, and to the descendants of 
such as shall have died, or if all have died, to their descendants. 

But, If the inheritance shall have come to the intestate on the 
part of his mother, it shall descend to her brothers and sisters 
and their descendants; and if there be none, to the brothers and 
sisters of the father and their descendants, in the manner afore, 
said 

If the inheritance has not come to the intestate on the part of 
either father or mother, it shall descend to the brothers and sis- 
ters both of the father and mother of the intestate, find their 
descendants in the same manner. 

In all cases mentioned in this section the inheritance shall de- 
scend to the brothers and sisters of the intestate's father or 
mother, as the case may be, or to their descendants in like man- 
ner as if they had been the brothers and sisters of the intestate. 
§ 289. Illegitimate children. 

If an intestate who shall have been illegitimate die without 
lawful issue or illegitimate issue entitled to take, under this sec- 
tion, the inheritance shall descend to his mother; if she be dead, 
to his relatives on her part, as if he had been legitimate. 

If a woman die without lawful issue, leaving an illegitimate 
child, the inheritance shall descend to him as if he were legiti- 
mate. 

In any other case illegitimate children or relatives shall not 
inherit. 

§ 290. Relatives of the half-blood. 

Relatives of the half-blood and their descendants, shall inherit 
equally with those of the whole blood and their descendants, 
in the same degree, unless the inheritance came to the intestate 
by descent, devise or gift from an ancestor; in which case all 
those who are not of the blood of such ancestor shall be ex- 
cluded from such inheritance. 



124 THE REAL PROPERTY LAW. 

§ 291. Cases not hereinbefore provided for. 

In all cases not provided for by the preceding sections of this 
article, the inheritance shall descend according to the course of 
the common law. 

§ 292. Posthumous children and relatives. 

A descendant or a relative of the intestate begotten before his 
death, but born thereafter, shall inherit in the same manner as 
if he had been born in the lifetime of the intestate and had sur- 
vived him. 

§ 293. Inheritance, sole or in common. 

When there is but one person entitled to inherit, he shall take 
and hold the inheritance solely; when an inheritance or a share 
of an inheritance descends to several persons they shall take as 
tenants in common, in proportion to their respective rights. 

§ 294. Alienism of ancestor. 

A person capable of inheriting under the provisions of this 
article, shall not be precluded from such inheritance by reason 
of the alienism of an ancestor. 

§ 295. Advancements. 

If a child of an intestate shall have been advanced by him, by 
settlement or portion, real or personal property, the value there- 
of must be reckoned for the purposes of descent and distribution 
as part of the real and personal property of the intestate de- 
scendible to his heirs and to be distributed to his next of kin; 
and if such advancement be equal to or greater than the amount 
of the share which such child would be entitled to receive of the 
estate of the deceased, such child and his descendants shall not 
share in the estate of the intestate; but if it be less than such 
share, such child and his descendants shall receive so much, 
only, of the personal property, and inherit so much only, of the 
real property, of the intestate, as shall be sufficient to make all 
the shares of all the children in the whole property, including the 
advancement, equal. 

The value of any real or personal property so advanced, shall 
be deemed to be that, if any, which was acknowledged by the 
child by an instrument in writing; otherwise it must be esti- 
mated according to the worth of the property when given. 

Maintaining or educating a child, or giving him money with- 
out a view to a portion or settlement in life is not an advance- 
ment. 

An estate or interest given by a parent to a descendant by 
virtue of a beneficial power, or of a power in trust, with a right 
of selection, is an advancement. 



THE REAL PROPERTY LAW. 125 

§ 29€. How advancements adjusted. 

When an advancement to be adjusted consisted of real prop- 
erty, the adjustment must be made out of the real property 
descendible to th6 heirs. When it consisted of personal prop- 
erty, the adjustment must be made out of the surplus of the 
personal property to be distributed to the next of kin. If either 
species of property is insufficient to enable the adjustment U 
be fully made, the deficiency must be adjusted out of the other. 



ARTICLE X. 
LAWS REPEALED; WHEN TO TAKE EFFECT. 

Section 300. Laws repealed. 

301. When to take effect. 

§ 300. Laws repealed. 

Of the laws enumerated in the schedule hereto annexed, that 
portion specified in the last column is repealed. 

§ 301. When to take effect. 
This chapter shall take effect on October 1, 1896. 



126 



THE REAL PROPERTY LAW. 



SCHEDULE OF LAWS REPBALjaD. 



Revised Statutes, part II., chapters 1, 2, 3 



. .All, except Se<?s. 5, 6, 



Revised Statutes, part II.. chanter 7. «tl« T... 


7 of tit. I. of ch. 1, 
and Sec. 63, tit. II., 
oh. 1. 
All. 


Laws of— 

1798 


Chapter. 

72 


Sections. 

All. 

All 


1802 


49 


1804 


109 


26. 

All 


1805 


25 


1807 


123 


2. 

All 


1808 


175 


1819 


. . . . 25 


All. 


1829 


222 


All. 


1830 


.... 171 


All 


1834 


. 273 


All 


1835 


. . . 275 . 


... . All. 


1839 


295 


5 


1843 


87. . 


All. 


1843 


. . 199 


All. 


1843 


210. . 


5. 


1845 

1845 


109 

110 


All. 

All. 


1845 


115 


All. 


1848 

1855 


195 

547 


All. 

All. 


1857 

1858 


ig 


All. 

. . All. 


1860 

1860 

1860 

1863 

1865 


322 

345 

396 

246 

421 


All. 

All. 

All. 

All. 

AH. 


1868 . . . 


. . 513 


All. 


1870 

1872 

1872 


208 

120 

141 


All. 

All. 

All. 


1872 

1874 

1875 

1875 

1875 

1877 

1879 

1880 

1880 


858 

261 

38 

336 

545 

Ill 

249 

300 

115 


All. 

All. 

All. 

All. 

All. 

All. 

All. 

All. 

All. 


1880 . . . 


530 


All. 


1882 


275 


All. 


1883 

1884 

1886 

1888 

1889 


80 

26 ..... 


All. 

All. 


257 

246 


All. 

All. 


42 


All. 


1890 


61 


All. 


1890 

1891 

1891 

1891 


475 


All. 


100 

. 172 


All. 

All. 


209 


All. 


1892 


208 


All. 


1892 


616 


All. 


IQQO 


. .. 123 


All. 


-1QQ9 ,, . 


182 


All. 


-JQQO 


207 


All. 


15*ft^ 


599 


All. 


1 0Q4 


315 


All, 


IftQd . . 


729 


All. 


lOQK 


. . 525 


All. 


1805 


886 


All. 



ANALYTICAL INDEX 



THE REAL PROPERTY LAW 



OF 



NEW YORK, 



TAKING EFFECT 1ST OCTOBER, 1806. 



BY 

GEO. W. VAN SICLEN, 



INDEX. 



206 


95 


21 


63 


131 


80 


76 


71 


51 


67 


51 


67 



SBCTIOK. PAaK. 

Jk.h»li»h<ed, livery of seizin has heen, .... 

Absolute fee ....... 

when grantee of power has ..... 

Accuiuulnte rents and profits, express trust to, 
Accumulations ....... 

of rents and pro/its void excejpt &B stllowed 

may be ordered applied to support and education of 

destitute minor children ..... 52 68 

Acknowleds^ed before Oct. 1, 1896, recording of con- 
veyances, ....... 243 109 

Acknowledging officer must know or have satisfactory 

evidence of identity of person .... 252 112 

Acknowledgments, 

before IT. S. officials prior to April 1, 1896, confirmed, 
by corporation, and form of . 

by married women within (he state same as if unmarried 
by whom ........ 

can only be made by person executing conveyance 
certificate of by officer taking, .... 

conveyances executed before Oct. 1, 1896 
Holland Land Co., or Pulteney estate, does not need 
County Clerk's certificate .... 

In Canada ....... 

lu foreign countries ...... 

In Great Britain and Ireland .... 

in other states ....... 

must also be recorded or record or transcript of instru- 
ment cannot be read in evidence 
must be authenticated in certain cases 
necessary to grant of fee or freehold before it can take 
effect against subsequent purchaser or incum- 
brancer ....... 

not necessary, hut great seal of the state, to letters patent 
granting real property ..... 

out of New York, before New York Commissioner or 
Mayor of foreign city, or any U. S. official, must be 
under seal ....... 

requisites of ....... 

taken by Judge of Canadian court of record must be au- 
thenticated by clerk of the court 
taken by New York Commissioner must be authenti- 
cated by Secretary of state .... 

taken by New York Commissioner out of New York and 

within U. 8., must state day and place, 
taken by official of one of the 77. S. or of Canada, must 
be authenticated by Secretary of State, or clerk, reg- 
ister, recorder or prothonotary of county, or clerk 
of court of county having seal, 
ioithin the state, ....... 

without the state, liow recorded when parties and certify- 
ing officer are dead ...... 262 115 

Act done in fraud of any creditor may be disaffirmed, 
treated as void, and resisted by executor, adminis- 
trator, receiver, assignee, or other trustee . . 232 106 
Act of deceased insolvent, fraudulent, may be disaf- 
firmed, treated as void, resisted, by creditor for 

over $100 

Act of law may create estate or trust 
Act of trustee in contravention of irus^ expressed in in- 
strument creating estate is void 
Acts of husband without wife's assent do not prejudice 
dower or jointure ...... 

Acts, recording a,ud ini.esin8: for New York City Twt af- 
fected by Real Property Law .... 



257 
258 
251 
242 
242 
255 
243 


113 
113 
112 
109 
109 
112 
109 


'.^59 
250 
250 
250 
249 


114 
111 
111 
111 
111 


267 
260 


117 
114 


208 


95 


245 


110 


257 
252 


113 
112 


260 


114 


260 


114 


256 


113 


260 

248 


114 
111 



232 
207 


107 
95 


85 


72 


183 


89 


275 


118 



rioN. 

5 

190 


PAGE. 

60 
91 


232 
276 
296 


107 
118 
125 


232 
232 
215 

222 
222 


106 
106 
96 
101 
101 


192 
295 
295 


91 
124 
124 


296 


125 


225 
225 


105 
105 


240 
218 
208 


109 
97 
95 



130 ANALYTICAL INDEX. 



Action by state against alien's property, when suspended 
Action for use and occupation ..... 

Action to set aside act, conveyance, transfer or agree- 
ment of deceased insolvent made in fraud of cred- 
itors, may be maintained by creditor for over $100 
•with mt first obtaining judgment 
Actions to have certain instruments cancelled of record 
Adjustment of advancements .... 

Administratoi* 

may have damages for fraudulent interference vrit\\. real 
property of deceased ..... 

wiaj/ disia^rm fraudulent act .... 

not to satisfy mortgage, but heir or devisee 
of grantee or mortgagee, covenants to benelit of, 
of grantor or mortgagor, covenants to bind. 
or executor o/ii/e tenant may recover portion of rent 
accrued before death ..... 

Advancements ....... 

how adjusted ....... 

from real property must be adjusted from surplus of 
real property, and from personal property from 
surplus of personal property if possible 
Adverse possession does not prevent mortgaging prop- 
erty ........ 

renders a grant absolutely void .... 

Aflectins the title to real property, any instrument except 
wm, lease for not over 8 years, executory contract, 
andpowerof attorney to convey, is a conveyance . 
Ag^ainst grantor's acts, covenants 
Agent, lawful, may subscribe grant of fee or freehold 
Agreement 

of ancestor or testator binds heir or devisee only to ex- 
tent of real property descended ov ^evx^e^ . . 217 97 
that whole sum shall become due in mortgages and 

bonds ........ 219 98 

in fraud of creditors by deceased Insolvent may be dis- 
affirmed, treated as void, resisted, by creditor for 
over $100, by executor, administrator, receiver, 
assignee, or other trustee .... 232 107 

for occupation in New York City not specifying dura- 
tion, shall continue until May 1st next after 
possession ....... 202 93 

jpoteer of cmirts of equity to compel specific performance 

of, not abridged by A.rticle VII., 
agreements in mortgages and bonds .... 

Albany County, Article VIII., does not apply to leases 
for life or lives, or for years heretofore made [1 

Oct., 1896] 

Alien 

holder* 3 litkhilitieB 

how may acquire and transfer .... 

m,ay hold, convey and devise /or six years 

resuient, may make deposition .... 

title through 
Alienation 

of trust interest ....... 

period of suspension dates from time of creation of 

power, not from date of instrument executing 
suspension of power of ...... 

Alienism of ancestor shall not preclude person capable 
of inheriting under Article IX. .... 

Alien's citizen wife may hold, convey, etc. . 

A^ir* inherit, when, ...... 

vyidow entitled to dower, when, .... 

Already created or vested estates are subject to § 56 
Altered or impaired by Real Property Law, nothing that 

has taken effectbef ore Oct. 1, 1896 
Alternative, future estates maybe created in the 
Ancestor, alienism of, shall not preclude person capable 

of inheriting under Article IX .... 294 124 

Annuitants, express trust to sell, mortgage or lease for 

benefl of 76 71 

Ar.ticipation of directed accumulation of rents and 

profits 52 68 

Apply rents and profits to use of person during life or 

shorter term, express trust to, . , . . 76 71 



234 


107 


219 


98 


240 


109 


8 


61 


5 


60 


5 


60 


4 


60 


7 


61 


83 


72 


158 


84 


32 


64 


294 


124 


6 


61 


5 


60 


5 


60 


56 


68 


1 


60 


41 


66 



REAL PROPERTY LAW. 



131 



Appointment of siiccessor on resignation or removal of 
trustee ....... 

Apportionablc, rent, when, ..... 

Apprehension of insolvency cause for removal of trustee 
Appurtenances^ and all ri^iit and estate, grant of. 
Appurtenances and estate of testator and grantor, trus- 
tee's or executor's deed of .... 

Article 

I. Tenure of Real Property .... 

II. Creation and division of Estates 
III. Uses and Trusts ...... 

IV. Powers ....... 

V. l>ovrer ....... 

V . I^andlord and Tenant . . . . 

VII. Conveyances and Mortgages 
VIII. Recording Instruments Affecting Real Prop- 
erty ........ 

IX. Descent of Real Property .... 

X. liavrs Repealed; IVheu to take effect 
AHicle. 

Ill, §§70 to 73 do not affect trusts arising by implication, 
nor prevent creation of express trust authorized by 
Real Property Law ...... 

IV., after 1 Oot., 1896, governs powers affecting real prop- 
erty ........ 

does not extend to simple power of attorney to convey 

governs execution of power directed by insufficient 

instrument ....... 

governs intentions of grantor of power 
Yll., does not abridge powers of courts ot equity to compel 
specific performance ..... 

does not affect or impair title of bona-flde purchaser 
or encumbrancers without notice 
VIII., does not apply to leases f i r life or lives or for years 
made heretofore [1 Oct., 1896] in counties of 
Albany, Ulster, Sullivan, Herkimer, Dutchess, 
Columbia, Delaware or Schenectady . 
IX., does not affect limitation by deed or will or tenancy by 
the curtesy, or dower ..... 

A.u»ent of intended wife in jointure . . . . 

in pecuniary provisions ..... 

Assessments overdue, whole principal to fall due in 

mortgages and bonds ..... 

Assignee 

for benefit of creditors takes a beneficial trust power . 

may compel execution of trost power where beneficiary's 

interest is assignable ..... 

may disaffirm any fraudulent act .... 

9f lessee has same remedies as lessee had, except on 
covenants against incumbrances, or of tisle or pos- 
session ....... 

of lessor has same remedies as lessor had 
of mortgage, lease, or other conditional estate is a 
•* purchaser " . . . 

Assigning any estate or Interest, any instrument except 
will, lease for not over three years, executory con- 
tract, and power of attorney to convey, is a "con- 
veyance" .....*. 

Assignment 

e>/wor(f/a5re carries power to sell 

record of, no notice to mortgagor .... 

vrith intent to hinder, delay or defraud creditors void 
Assigns 

conveyance void as to, if void as to creditor, purchaser 
or incumbrancer ...... 

of grantee or mortgagee, benefit of . 
of grantor or mortgagor, covenants to bind. 
Association, damages for fraudulent interfering with 
real property of insolvent .... 

Assurance, covenant of further ..... 

in mortgage ....... 

Attestation or acknowledgment of grant of fee or free- 
hold before it can take effect against subsequent 
porohaserorincumbrancer . . , . 

Attorney-general shall represent beneficiaries and en- 
force trusts where they are indefinite or uncertain. 



92 


74 


192 


91 


92 


74 


220 


101 


221 


101 




59 


!!!! 


62 


.... 


69 


.... 


76 


.... 


86 


.... 


90 


.... 


9i 




108 


.... 


120 


.... 


125 



73 



240 



240 



240 

126 
271 

227 



228 
222 
222 

232 

218 
219 



208 



70 



110 

no 


78 
78 


149 
152 


83 
83 


234 


107 


230 


106 



109 



280 
177 
178 


121 

88 
88 


219 


98 


144 


82 


142 
232 


82 
106 


193 
193 


91 
91 



109 



109 

ifg 

105 



105 
3 01 
101 

106 
97 
98 



95 



SECTION. 


PAGE. 


93 


75 


187 
244 


89 
110 



260 
259 
260 


114 
114 
114 


260 
260 
261 
261 
79 


114 
114 

114 

114 

71 


211 
116 
139 


96 

78 
82 



83 


72 


80 


72 


38 


82 



132 ANALYTICAL INDEX. 



or where no trustee named under grant or deriBe 
for charitable purposes ..... 
Attorney 

of married woman may release her dower 

recordtn^r executory contracts, and jootcer* of 

power of, to convey, not considered revoked unless 

revocation recorded ..... 273 118 

Attornment 

by tenant to stranger absolutely void . . . 194 91 

to grantee not requisite to validity of conveyance of 

property occupied by tenant .... 213 96 

Anthentication of acknovFledgment or proof 

by Canadian judge must be by clerk of the court 

by county clerk ... ... 

by N. Y. commissioner must be by Secretary of State . 

by official of one of the 77. S., or Canada, must be by Sec- 
retary of State of the state, or by clerk, register, 
recorder, or prothonotary of county, or clerk of 
court of county having seal 

in certain cases ..... 

contents of certificate of . 

Canadian certificate .... 
Authorized trust, when valid as a power 
Bargain and sale, deeds of may continue to be used, 

and are grants .... 

Beneficial povrer ..... 

subject to creditors .... 

estate, or interest, given by parent by virtue of bene- 
ficial power, with a right of selection, is a«. ad- 
vancement ....... 295 124 

Beneficiary 

in trust for receipt of rents and profits, who is entitled 
to remainder in whole or part, may release 

may enforce performance of express trust 

more than one. distribution when .... 

mtist have notice of intention of court to appoint a per- 
son to execute trust on death of last trustee . 91 74 

0f any other trust than to receive and apply rents and 

profits may transfer right and interest . . 83 72 

of express trust to receive and apply rents and profits can 

not assign or transfer the right ... 83 72 

of express trust tabes no legal estate or interest in the 

property ....... 80 72 

Beneficiaries indefinite or uncertain under grant or 
devise for charitable uses, attorney-general shall 
represent ....... 93 75 

cf trust share equally on death of trustee with power of 

selection unexecuted ..... 140 82 

Benefit of creditors 

an executor, administrator, receiver, assignee or other 
trustee, may disaffirm any fraudulent act, for bene- 
fit of creditors, including himself . . . 232 106 

creditor for over $100 may disaffirm any fraudulent 
act of deceased insolvent 

execution of beneficial power vaa,j he adjudged for 

termination of trusts for . . . . 

Benefit of trust estate, court may autborize mortgage 

or sale for ....... 85 72 

Benevolent uses, conveyance or deviee for, not in- 
valid for indeflniteness or uncertainty of bene- 
ficiaries ....... 93 75 

Best interest of trust estate 

court may authorize mortgage or sale . . 85 72 

court may order sale if an undivided share or part . 85 72 

Block system of recording and indexing N. Y. City, acts 

for not aff cted by this Real Property Law . 275 118 

Board of directors must authorize officer to acknowl- 

edffe conveyance ...... 258 113 

fide purchaser or incumbrancer Without notice, 
title not affected or impaired by Article VII. 

power is a lien against from time of record 

protected ........ 

bona fide subsequent purchaser, unrecorded convey- 
ance void as to . . . . . . 241 109 

tonds secured by mortgages on real property, covenants 

and agreements in . . . . . . 219 98 



232 


107 


139 


82 


90 


74 



229 


106 


127 


80 


75 


71 



SECTION. 


PAGB. 


268 
264 


117 

116 


213 


96 


287 
287 


122 
122 



197 


92 


219 


98 


242 


109 


260 


111 



BEAL PKOPERTY LAW. 133 



Book aitd page and time of record must be indorsed on 
instrument ....... 

Books, recording, for deeds and mortgages 
Broach of lease, tenant not liable to grantee before 
notice of conveyance ..... 

Brothers and sisters, and tbeir descendants, how take by 
descent ........ 

Uike by descent per stirpes and not per capita . 

•/ father and mother and tbeir descendants, how take 

by descent 288 123 

BnildinS) a trustee may be authorized to pay for, at end 

oflease 86 73 

destroyed or injured by elements or other causes, so as 
to be untenantable, or unfit for occupancy, tenant 
may sui^ender, if not his fault, and pay no rent 
thereafter ....... 

buildings inswre<? under mortgage .... 

By "vrhom conveyance must be acknowledged or proved 
Canada, acknowledgments and proofs m, . 
Canadian certificate of authentication ot acknowledgment 

or proof, contents of, .... . 261 114 

jitdgeof court of record, acknowledgment or proof be- 
fore must be authenticated by clerk of court . 260 114 
official, acknowledgment or proof before must be 
authenticated by clerk, register, recorder orpro- 
thonotaryof county, or by clerk of court having seal 260 114 
Cancelled of record, action to have certain instruments 276 118 
Capacity 

of married woman to take power 

to grant a power .... 

to hold real property 
to take and execute a power 
to take under a power 
to transfer real property 
Cases not hereinbefore provided for, common law governs 
descent .... 

Certain acts not affected 
Certain deeds declared grants . 

deemed mortgages 
Certain powers create a fee 
Certain uses and trusts abolished . 
Certified copies 

of conveyance or mortgage of several parcels may be re- 
corded in any county where parcel situate . . 247 110 
^f instruments in Secretary of State's office may be re- 
corded 246 110 

of record or recorded instrument m ay be recorded again 247 110 

Certificate of acknoiivledgnient or proof 

by officer taking it ...... 255 112 

tontents of certificate of authentication of . . . 261 114 

Mutents of Canadian authentication . . , 261 114 

nvust be recorded with instrument, or record or tran- 
script can not be read in evidence . . . 267 117 
of deed of Holland Land Co., or of Pulteney Estate, does 

not need county clerk's certificate . . . 259 114 

taken out of N. Y. and in If. S. by N. Y. Commissioner 

must state day and place .... 256 113 

taken out of state by N. Y. Commissioner, or by XT. S. 

official, must be under seal .... 257 113 

Certificate of authentication, contents of . . 261 114 

Chapter I does not alter or impair any vested estate, 
interest, or right, nor the construction of any con- 
veyance, will or other instrument which has taken 
effect before 1 Oct., 1896 .... 16© 

Charge on real property 

esfpress trust to sell, mortgage or lease for purpose of sat- 
isfying ........ 76 71 

not adjudged fraudulent solely for want of valuable 

consideration 229 1©6 

poid as to creditor, purchaser or incumbrancer is void as 

to their heirs, successors, re preseutatives or assigns 228 105 

Charitable uses, conveyance or devise for, not invalid for 

indeflniteness, or uncertainty of beneficiaries . 93 75 

*• Chattel inte:rest " is included in term "estate " or "in- 
terest in real property " ..... 205 95 
Chattclinterests, estates at will, or by sufferance are, . 23 63 



122 79 

119 79 

2 60 

121 79 

159 84 

2 60 

291 124 

276 118 

211 96 

269 117 

130 8© 

71 70 



SECTION. 


FAQB. 


4t 
24 


65 
63 


240 
23 
39 

289 


75 

63 

6§ 

123 


2 

2 


60 
69 


220 


101 


249 
286 
286 
217 


109 

122 

122 

97 



134 ANALYTIC A.L INDEX. 



Chattel vval, reutainder of on determination of term of 
years ........ 

when estate for life of third per$on is 
''Chattels real>» except lease for not over 3 years in- 
cluded in term " real property " in Article VIII. . 
estates for years are ...... 

limitations of ...... . 

Children, illegitimate, when inherit .... 

Citizen of Uuited States 

capable of holding real property .... 

capable of taking by descent, devise or purchase 
"Claint'> included in grant of appurtenances and all 
rights ........ 

Clerk of the County i« recording officer, except in New 
York, Kings and Westchester, where it is the regis- 
ter of the county ...... 

Collateral relatives inherit, when .... 

of equal degree inherit in equal parts 
Collateral ^varrenties have been aholished 
Coluonbia County, Article VIII. does not apply to leases 
for life or lives, or for years, heretofore made 

[1 Oct., 1896] 240 109 

Commissioner for Ne^v York 

Acknowletigmeut or proof by, must be authenti- 
cated by Secr^^tary of State .... 260 114 

out of N. Y. and in JJ. S., must state day and place in 
certificate of acknowledgment .... 

out of N. Y. mtist affix seal to acknowledgment 
Committee of estate takes a beneficial trust power 
Common, estate in, ...... 

Common inheritanc<>, or sole .... 

Comnaon law governs descent in cases not provided for 
in the Real Property Law .... 

Common, ^(vhen estate in, and when joint tenancy 
Coanpel specific performance, powers of courts of 

equity to, not abridged by Article VU. 
Compelling witnesses to conveyance to testify 
Compensation, landlord may recover, for use and occu- 
pation ........ 

Couaputation of term of suspension .... 

Condition, power subject to .... . 

Conditional estate, assignee of is a purchaser 
Conditional limitations ..... 

Conditions of execution o€ power, grantor's intent to 
be observed ....... 

nominal may be disregarded ..... 

Connecticut, conveyances by treasurer of . 
Connection of owners of an estate .... 

Consanguinity 

of equal degree, collateral relatives take equal parts by 
descent ....... 

lineal descendants take equal parts . . , 

of unequal degree, lineal descendants take per stirpes 

ana not per capita ...... 283 121 

Consent of all requisite, or of survivor, to execution of 

power ........ 154 84 

Consent of grantor, or third person, must be written in 

or endorsed on instrument executing power . 153 83 

Consideration paid by one, grant to another, fraudulent 

as to creditors, at that time, of former . . 74 79 

Construction 

of covenants in mortgages and bonds . . . 219 98 

in grants of freehold interests .... 218 97 

of executor's grant of appurtenances and of estate of 

testator and grantor ..... 221 101 

of grant of appurtenances and all rights of grantor . 220 101 

of powers eoverued after 1 Oct., 1896, by the Real 

Property Law ...... 11* 78 

of trustee's grant of appurtenances and of estate of tes- 
tator and grantor ...... 221 191 

Constructive notice, but not to be read in evidence, the 
record of conveyance, and certificates of proof, 
where witnesses are dead .... 

Contents of certificate of auth'^ntication 
Contingency improbable, yet future estate valid 
remaiTider may be limited on . 



256 
257 
144 
55 
293 


113 
113 

82 

68 

124 


291 
56 


124 

68 


234 

254 


107 
112 


190 
158 
134 
24« 
43 


91 
84 
81 
109 
66 


152 

ISl 

272 

5S 


83 

83 

118 

68 


286 

282 


122 
121 



263 


116 


261 


114 


42 


66 


43 


66 



KEAL PROPERTY LAW. 135 



C*atiagent eatase, creation of . . . . 

is included in term "estate" or "interest" in real 



propertT 
iingent, fu 



JTION. 
40 


PAGE. 
65 


205 
30 


95 
64 


32 

36 

5 


64 
65 
60 


240 

224 


109 
110 


224 


105 


241 
243 


109 
109 


262 

248 

257 

5 


115 

110 

113 

60 



amtingent, future estate when .... 

C«ntingeut remainder in fee on prior remainder in 
fee, when ....... 

on term of years ....... 

€*ntrart, by alien ....... 

exe4n*U>ry, for sale or purchase of lands is not a "cou- 
Teyance" ....... 

executory, and powers of attorney, recording 

to sell, or lease for more than one year, void unles** 
written ....... 

C^HTejance 

acknowledged or proved v[iQ,Y he TQcordiQA. 

before 1 Oct. 1896. recording or reading in evidence of 

without the state, lio^ VQCOT^e^y^'h.Qix parties and certi- 
fying officer are dead .... 

acknowledgments a7id proof of within the state 

before TT. S. official prior to 1 April, 1896, confirmed 

by alien . ...... 

by corporation, hoard of directors must authorize 

acknowledgment ..... 258 113 

by deceased insolvent, fraudulent, may be disaffirmed, 
treated as void, resisted, by creditor for over 
$100 

by patriotic Indian ...... 

by sheriff, or referee, must be indexed also against each 
person whose rigtit, title, or interest was sold 

by tenant for life or years, of greater estate than he pos- 
sesses does not work forfeiture, but passes all he 
has ........ 

by treasurer of Connecticut ..... 

by trustee in contravention of irws^ expressed in instru- 
ment creating estate is void .... 

by whom acknowledged or proved .... 

compelling witness to, to testify .... 

does not pass greater estate than srrantor had 

includes every written instrument by which title may be 
affected ....... 

includes every written instrument except will, lease for 
not over three years, executory contract, and power 
of attorney to convey ..... 

includes inftrument in execution of a power, although. 
power of revocation only .... 

in fee, made before 9 April, 1805, or after 14 April, 
1860. ^ 193 does not apply .... 

intended as secuHty, grantee derives no benefit from 
record unless defeasance also recorded 

no covenants implied in ..... 

not acknowledged or proved before 1 Oct., 1896, yet 
may be ....... 

not adjudged fraudulent solely for want of valuable 
consideration ...... 

not recorded, void as to subsequent boiva fide purchaser 

of real property by feoffment, with livery of seizin, has 
been abolished ...... 

of several parcels, certified copy may be recorded in any 
count/ where parcel situate .... 

of trust property by trustee by order of court must be on 
notice to beneficiary ..... 

or assignment, vnth intent to hinder, delay or defraud 
creditors, void .... 

or devise, for religious, educational, charitable or be- 
nevolent u^es not invalid for indefiniteness or uncer- 
tainty of beneficiaries ..... 

jfH-oof of, where witnesses are dead .... 

record%ng of ....... 

short forms of ....... 

to alien ........ 

to trustee omitting an express trtist, shall be absolute as 
to subsequent creditors and purchasers without 
netio© ........ 

under § 231 valid from time power of revocation vests 

the term in Article VII. includes every instrument ex- 
cept a will 205 95 



232 
9 


106 
61 


265 


116 


212 

272 


96 

118 


85 
242 
254 
210 


72 
109 
112 

96 


240 


109 


240 


109 


240 


109 


193 


91 


269 

216 


117 
97 


243 


109 


229 
241 


106 
109 


206 


95 


247 


110 


87 


73 


227 


105 


93 

263 

241 

223 

5 


75 
115 
109 
102 

60 


84 
231 


72 
106 



136 ANALYTICAL INDEX. 

SECTIOK. YAttS. 

void as creditors, purchasers and encumbrancers, void 

as to their heirs and assigns .... 228 106 

void, with intevA to defraud purcTiasers and encum- 
brancers ....... 226 105 

tcith power to revoke, determine, or alter, by grantor or 
by third person, void against subsequent bona fide 
purchasers or encumbrancers, although not ex- 
pressly revoked ...... 231 106 

written when necessary ..... 207 96 

Conreyances and Iflortgages Article YII. 94 

conveyance, see also Deeds 
Copies of instrnmeiits which are in Secretary of State's 

oflfico may be certified and recorded . . . 1^46 110 

copies of record or of recorded instrument, certified, 

may be again recorded ..... 247 110 

copy of conveyance or mortgage affecting several par- 
cels, certified, may be recorded in any county 
where parcel situate. ..... 247 110 

Coiyoration, acknowledgment by, and form of . 258 113 

damages for fraudulentXy interfering with real property 

ot insolvent ....... 232 106 

County clerk 

his authentication, when necessary .... - 259 114 

his certificate not necessary to Holland Laud Co., nor 

Pulteney estate ...... 259 114 

his certificate, when necessary .... 259 114 

is " recording officer^' except in New York, Kings, or 

Westchester, where it is tbe register of the county 240 109 

may charge $5 in addition to reg ular fees for recording 

instrument using long forms of covenants . 274 118 

Conrt 

becomes trustee on deatb of last trustee 

has power to supply defective execution of power 

may accept resignation of trustee .... 

may appoint person to execute trust, on notice to bene- 
ficiary ........ 

may appoint receiver of a trust, pending appointment 
of new trustee ...... 

successor on resignation or removal of trustee 

may axdhorize mortgage or sale of trust estate tor its best 
interepit or for preserving or improving it 

may authorize trustee to lease and to covenant to buy 
buildings ....... 

to lease for over five years ..... 

may confirm trustee's lease for over five years made be- 
fore 4 June, 1895 

mat/ direct maintenance or education of destitute minor, 
from accumulation of rents and profits 

may enlarge time of widow to elect as to dower 

may order sale of undivided share which is trust estate 

may remove trustee for cause ..... 

vnust execute power where testator omitted to designate 

by whom 141 82 

shaU have control of property where no trustee named 

in grant or devise to charitable uses . . 93 75 

shall have legal title to property where no trustee named 

in grant or devise tor charitable purposes . . 93 75 

Courts of equity, powers to compel specific performance 

not dbHdged by Article VII. .... 234 107 

Cerenant 

against grantor^ s acts . . . . . . 218 97 

of ancestor or testator binds heir or devisee only to 
extent of real property descended or devised 

of freedom from encumlrrancee .... 

of further assurance ...... 

of further assurance of title 6t/ mor^firoflror 

of good right to convey ...... 

of quiet enjoyment ...... 

of seizin . ....... 

of warranty of title ...... 

of warranty of title in mortgagee .... 

that grantor has not encumbered .... 

that mortgagee shall have power to sell in default of pay- 
ment ........ 

that whole sum shall become tfwe in mortgages and bonds 

to insure under mortgage ..... 



91 

162 

92 


74 
83 

74 


91 


74 


92 
92 


74 
74 


85 


72 


86 

86 


73 
73 


86 


73 


52 
181 

85 
92 


68 
88 
72 
74 



217 


97 


218 


97 


218 


97 


219 


98 


218 


97 


218 


97 


218 


97 


218 


97 


219 


100 


218 


97 


219 


99 


219 


98 


219 


f» 



SECTION. 


PAGK 


219 


100 


219 


90 


214 


96 


193 


91 


218 


97 


214 


96 


219 


98 


216 


97 


274 


91 


222 


101 


222 


101 



240 


109 


Article 11. 


62 


40 


65 



REAL PROPERTY LAW. 137 



io luep buildings insured, in mortgage 

to pay, in mortgage ...... 

to pay stun eeoured, not implied in mortgage 

against encumbrances, or relating to title or possession, 
do not pa^s to benefit of lessee. Lis assignee, or per- 
sonal representative as against lessor, liis grantee 
or assignee ....... 

in grants (^freehold, construction of . . . 

in mortgages ....... 

in mortgages and bonds, construction of . 

not implied in a conveyance ..... 

jpenoffi/ it's for ueiuff long forms of .... 

to benefit representatives of grantee or mortgagee 

to bind representatives of grantor or mortgagor 
C«Tiii* crime, laches or default of husband do not preju- 
dice wife's dower or jointure . . . . 183 89 

Creating any estate, or interest, any instrument, except 
will, lease for not over 3 years, executory contract, 
or power of attorney to convey, is a "convey- 
ance" ....... 

Creation and Division of £: states . 

creation of future and contingent estates 

creation of powers governed after 1 Oct., 1896, by Article 

IV 110 78 

creator of trust m,ay declare to whom property shall be- 
long on failure or termination of trust . . 81 72 

may grant or deviae property subject to execution cf 

the trust ....... 81 72 

Creditor/or over $100 may disaflarm act of deceased in- 
solvent . 232 106 

need not first obtain judgment on claim before maintain- 
ing action to set aside fraudulent deed or agree- 
ment of deceased insolvent debtor . . . 232 106 
Creditors 

beneficial power is subject to claims of . . . 139 82 

cauciatm st*rp?Ms income of trust property . . 78 71 

conveyance, or assignment void, with intent to hinder, 

df-lay or defraud ...... 227 105 

conveyance void as to, is void as to their heirs or assigns 228 105 

execution of beneficial power may be adjudged for benefit 

of 139 82 

grant to another, where consideration paid by debtor at 

that time, presumed fraudulent against . . 74 70 

may compel execution of trust power where beneficiary's 
interest is assignable ..... 

pov>er is a lien against, from time of record 

subsequent, without notice, protected against express 
trust not declared in in conveyance to trustee . 

ticrmination of trusts for benefit of .... 
Crime, laches, default or covin o/^ws&and do not preju- 
dice wife's dower or jointure .... 
Crop in land held in dower, widow may bequeath 
♦*Cnrtesy" included in grant of appurtenances and all 

estate 220 101 

l^amajges 

against officer guilty of malfeasance or fraudulent 

practice 277 119 

and double rent where tenant holds over after 30 days' 

n'^ticeto quit. No equitable defence to this . . 200 93 

f«r fraudulent interference vrith real 2>roperty of deceased, 
or of insolvent corporation, association, partner- 
ship, or individual 232 107 

12 July, 1782, Feetail as it existed before, shall be 

simple fee 22 63 

9 April, 1805, Conveyance in fee made before, § 193 

does not apply ...... 193 91 

7 ^arch, 1809, Conveyance by patriotic Indian, or 

lieirs, after, valid 9 61 

10 March, 1825. Conveyance may be recorded executed 

toy treasurer of Conn., since .... 
31 Dec, 1829, Powers abolished as they existed 
1 Jan'y, 1830, Estate of trustee existing, not divested 
14t April, 1860, Conveyance in fee made after, § 193 

does not apply ...... 193 91 



142 
127 


82 
80 


84 
90 


72 

74 


183 

185 


89 
89 



272 


118 


110 


78 


72 


70 



138 



ANALYTICAL INDEX. 



4 June, 1895, Leases for over 5 years made by trustee 
before, may be oonflrmed by court 

1 April, 1896, Proof in due form before U. S. Official 
prior to. confirmed . . . . . 

1 Oct., 1896. Article VIII. does not apply to leases for 
life or lives or for years heretofore made in coun- 
ties of Albany, Ulster, Sullivan, Herkimer, 
Dutchess, Columbia, Delaware, or Schenectady . 

ibid Nothing altered or Impaired that has taken effect 
before ........ 

ibid Proving or acknowledging conveyances executed 
before ........ 

ibid Real Property Law takes effect 

ibid Recording, or reading in evidence, of conveyances 
acknowledged or proved before 

ibid Rules of law now in force as to delivery of deeds 
apply to grants hereafter executed 
Heath 

of last trustee, trust estate not to descend to his heirs . 

trust estate vests in Supreme Court 

of testator is time of creaiioii of expectant estate by 
devise ........ 

of trustee, toith right of setection, nnenecuted, execution 
of power on death ... . . 

l^cceased, damages for fraudulently interfering with 
real property of ..... . 

IJeceased insolvent, creditor for over $100 may dis- 
affirm fraudulent act of . 
Ideclaration of trust n^ay be proved by writing sub- 
scribed by person dec aring . . . . 

l>ead parties and certifying officer to conveyance 
acknowledged or proved without the state, how 
recorded ....... 

Ideed 

executor's, short form of ..... 

intended as security, mortgagee derives no benefit from 
record unless defeasance also recorded 

lindtation by, not aflected by Article IX. (Descent) 

with full covenants, short form, of . 

Deed, see also conveyance 
Heeds 

acknowledgments or proofs of before U. S. official prior 
to 1 April, 1896, conflr^Ded 

a7id mortgages, short forms of .... 

certajin, deemed mortgages .... 

of bargain and sale, and of lease and release, are grants 
and may continue to be used .... 

recordingbooksiormoTtssb^ea anfl • . ' 

relies of law as to delivery of, apply to grants here 

after 

l^efault, covin, crime or laches of husband do not pre 
judice wife's dower orjointure . 

default in payment of debt, power to sell in mortgage 

of interest, principal due in mortgages and bonds 

of tax or assessment, principal due in mortgages and 
bonds ........ 

Defeasance must be also recorded, or grantee under 
deed intended as security derives no benefit from 
record . . .... 

defective execution of power, purchaser under, re 
lieved ....... 

lOeficiency in surplus of real or personal property in 
adjusting advancement must be made up out of the 
other species ..... 

lOefinition of grantor, grantee, in relation to a power 

definition of a power ..... 
IDefinitions 

and effect of Article Till. (Recording) 

and use of terms, effect of Article IX. {Descents 

and use of terms in Article VII (conveyances and mort 



in the Real Property Law .... 

Defraud creditors, conveyance or assignment toid with 

intent to ...... 

defraud purchasers or encumbrancer $, conveyances void 

with intent to ..... 



SKCTIOX. 

86 
257 

240 

1 

243 
300 

243 

209 

91 
91 

54 

140 

232 

232 

207 

262 
223 

269 

280 
223 



2.57 
223 
269 

211 

264 

209 

183 
219 
219 

219 



269 
160 

296 
112 
111 

240 

280 

205 

1 

227 
226 



PAGE. 

73 

113 

109 
60 

109 

125 

109 

95 

74 
74 

68 

82 

206 

106 

95 

115 

102 

117 
121 
102 



113 

64 

117 

96 
116 

95 

44 
99 

98 

98 



117 
84 

125 

78 
78 

109 
121 

05 
60 

105 

105 



REAL PROPERTY LAW. 139 

SECTION. PAGE. 

equal, collateral relatives take equal parts . . 286 122 

equal, lineal descenaants tase iu equal parts . . 282 121 

'unequal, lineal descendants take per stirpes and n^^t per 

capita 283 121 

Jlelmware county, Article VIII. (Recording) does no": 
apply to leases for life or lives, or for years, hereto- 
fore made a Oct.. 1896) .... 240 109 
Delay creditors, conveyance or assignment void witli 

intent to 227 105 

Delivery 

a grant takes effect only from ..... 209 95 

of deeds, rules of law as to delivery of, apply to grants 

hereafter 209 95 

©/ tfie grant is time of creation of expectant estate by 

grant . 54 68 

tp recording officer, instruBaent is considered recorded 

from time of 266 117 

" Demand " Included in grant of appurtenances and all 

rights 220 101 

Deposition 

of alien musthe filed and recorded .... 4 60 

of resident alien ....... 4 60 

presumptive evidence ...... 4 60 

Descendants 

begotten before death of intestate but born thereafter 

inherit as if born before and had sarvived him . 292 124 

lineal, in equal degree, take in equal parts . . 282 121 

lineal, in uneqtial degree, taike per stirpes andnotjper 

capita 283 121 

of brothers and sisters of father and. mother, how taike 

by descent 288 123 

•/ brothers and sisters tatko by descent per stirpes and 
not per capita .... 

of eitizen wife of alien may inherit . 
Descent of Real Property 

general rule of . 

icho may take by deBcent 
Destruction of building without his fault, tenant may 

surrender ....... 197 92 

Determination of precedent estate before contingency, 

effect on valid remainders . . . . 48 67 

Devise 

and dower, election between ..... 

by alien ........ 

msposition by power to , must be by legally executed 
written will ....... 

effect in certain oases of power to . 

for purpose of sale or mortgage, to executor or trustf^e 
not empowered to receive rents and profits vests no 
estate in him, but is valid as a power . 

♦n^ewo/ dower may be forfeited .... 

In Ueu of dower takes effect on forfeiture in whom it 
would have vested by her death 

i^r conveyance, for religious, educational, charitable or 
benevolent uses, not invalid for uncertainty of 
beneficiary ....... 

9r grant, what estate passes by .... 

passes all estate or interest testator had, unless differ- 
ent Intent by express terms .... 

*o an alien ........ 

when operates as execution of power 

who may take by . 
Devised property, mortgage on must bepaid by devisee, 
not by executor ...... 

Devisee 

no«ea;ecMtor, must satisfy mortgage on devised property 

of lessor has same remedies that the lessor had . 

of property subject to express trust shall have legal 
estate against all except trustee 

of person maker of covenant or agreement liable to ex- 
tent of property devised .... 

takes subject to execution of power .... 
Devises 

eertain. to be deemed powers ..... 

otrea.l'pTO'peitj for charitable purposes . 



287 


122 


6 


61 


Article IX. 


120 


281 


121 


2 


60 



180 
5 


88 
60 


147 
132 


83 
81 


77 
182 


71 

89 


182 


89 


93 
210 


75 
96 


210 

5 

156 

2 


96 
60 
84 
60 


215 


96 


215 
193 


96 
91 


81 


72 


217 

77 


97 

71 


77 
93 


71 
75 



147 

148 

50 


83 
83 
67 


157 


84 


133 

138 


81 

82 


176 
186 
113 


87 
89 
78 



140 ANALYTICAL INDEX. 

SiiCTION. PAGE. 

" Died,'' in Article IX. (Descent) .... 280 121 
Different indexes of mortgages and conreyancea . 265 116 
Different sets of recording books for deeds and mort- 
gages 264 116 

]>irection by grantor for insufficient instrument, power 

not void 149 83 

Directions of grantor of power beyond sufficient legal 

forms need not be followed .... 150 83 

JDisaffirmance of any fraudulent act by executor and 

others 232 106 

Disaffirmance of fraudulent act of deceased insolvent 

by creditor for over $100 232 107 

l^ischarge of mortgage must be recorded and noted on 

record 270 117 

Sdisposition 

of power to devise must be by legally executed written 
will ........ 

of power to grant can not be by will .... 

of rent and profits ...... 

or charge, by virtue of a power is not void because too 
extensive ... .... 

power of is absolute wlien grantee can in his lifetime 
dispose of fee to his own benefit 
S^istribution where more than one beneficiary 
Sdivorce a vinculo for misconduct of wife bars her dower 
as widow ....... 

Divorced woman may release dower 

JlSivisions of powers ....... 

Dominion of Canada, acknowledgments and proofs 

in ........ 250 111 

Double rent and damages where tenant holds over after 

30 days notice to quit. No equitable defence to this. 200 93 

Double rent when tenant holds over after giving 
notice of intention to quit 
Dower ........ 

Article IX. (Descent) does not affect . 

barred by devise in lieu of ... . 

by jointure . . ..... 

by misconduct ...... 

by pecuniary provision in lieu of . 

election between devise and .... 

jointure, or pecuniary provision, and 

included in grant of appurtenances and all estate 

in lands exchanged ..... 

mortgaged for purchase money 

mortgaged before marriage .... 

maube released b/ attorney of married woman . 
by divorced woman ..... 

not prejudiced by acts of husband without wife's assent 
provision, devise or jointure in lieu of, when forfeited 
when alien's widow has ..... 

when widow deemed to have elected 
widow may bequeath crop Inland held in . 
Duration of certain agreements in N. Y. City 
Dutchess County, Article VIII. does not apply to leases 
for life or lives, or for years, heretofore made [1 

Oct., 1896] 240 109 

Educating a child without a view to a portion or settle- 
ment in life is not an advancement . . . 295 124 
lEducation andsupporcmay be ordered destitute minor 

entitled to expectant estate .... 52 68 

]Bdncational uses, conveyance or devise for. not invalid 

forindeflnitenessoruncertainity of beneficiaries . 93 75 

Kffect 

grraw^ tofees, only from delivery .... 

o/ac^s of AMs&a/w? without wife's assent . 

of Article IX. ....... 

of conveyance where property is leased 

of grant or mortgage ot real property adversely pos- 



199 


92 


Article T. 


86 


280 


121 


180 


88 


177 


88 


176 


87 


178 


88 


180 


88 


179 


88 


220 


101 


171 


87 


173 


87 


172 


87 


187 


89 


186 


89 


It 183 


89 


182 


89 


5 


4 


181 


88 


185 


89 


202 


93 



of insolvent assignment on beneficial trust power 

of marriage with alien ..... 

of mortgage by grantee of life estate . 

of power to devise in certain cases . 

of power to revoke ..... 

of renewal on sub-leases .... 



209 


05 


183 


89 


280 


121 


213 


96 


225 


105 


144 


82 


6 


61 


136 


81 


132 




125 


80 


196 


02 



REAL PROPERTY LAW. 



141 



of this law ........ 

on valid remainders, of determination of precedent 

estate before contingency 
this Beal Property Law takes, 1 Oct., 1896 . 
Election 

o/wmZouj between devise and dower 

between jointure and dower .... 

ord^r for enlargement of widow's time indexed and re 
corded like lis pendens .... 

time for widow* s, maybe enlarged by court 
when ividow deemed to bave made 
£ ncumbr ancer 

conveyance void as to, is void as to heirs and assigns 
conveyances void with intent to defraud . 
for valuable consideration, conveyance to, is valid 
after conveyance providing for revocation, al- 
though same not expressly revoked 
without notice, title not affected or impaired by Arti 

cleVII - 

in good faith, power is a lien against only from time of 
record ....... 

with notice, conveyance or charge fraudulent as to sub 
sequent, where grantee privy to fraud . 
Encnmbrances, covenant of freedom from . 
Enjoyment, covenant of quiet .... 

enumeration of estates in expectancy 
enter on record after instroment, time of record, re 
cording oflScer must ..... 

Eqnal degree, collateral relatives in, inherit in equal 
parts ....... 

lineal descendants in, take in equal parts . 
Equal parts, collateral relatives in equal degree inherit 
in ....... 

lineal descendants in equal degree take in 

"Equitable estate " is included in term "estate" or 

"interest in real property" 

"Equity*' claim, right and estate, included in grant 

of appurtenances and all rights and estates . 
Equity, powers of courts of, to compel specific perform 
ance, not abridged by article VII. 
Estate 

every estate or interest in real property is a legal right 

except lease for one year, or trust, can only be created 

by written instrument ..... 

for life as remainder on term of years 

for life in a term of years . . . . . 

for life of third person chattel real after death of gran- 
tee ........ 

for life or years, when changed to fee 

freehold, for life of grantee ..... 

for years, at termination, tenant holding over after 30 
days' notice to quit liable for double rent and dam- 
ages. No equitable defence to this. 
in expectancy ....... 

can not be defeated by intermediate owner, nor by dis- 
seizin, forfeiture, surrender, nor merger 
la created by devise at death of testator . 
is created by grant on delivery of the grant 
liable to be defeated as provided by its creator is not 
void in its creation ...... 

when deemed created . . . . 

in fee, ••heirs" or other words of inheritance not 
necessary to create or convey .... 

in possession ....... 

of trustee ceases when purpose ceases for which trust 
created ........ 

with power of disposition, prior to 1830. not divestM 
or interest given to a child by virtue of a beneficial 

Eower, or a power in trust, with a right of selection 
} an advancement ...... 

tfie term " estate " includes every interest in real prop- 
erty, freehold or chattel, local or equitable, present 
or future, vested or contingent .... 

to two or more is tenancy in common unless expressly 
declared joint tenancy . . . . . 

vested in executors or trustees is always in joint tenancy 



SECTION. 
1 



48 
301 

180 
179 

181 
181 
180 

228 
226 



231 

230 

127 

226 

218 

218 

26 

268 

286 
282 

286 

282 

205 

220 

234 

71 

207 
37 
40 

24 
129 

24 



20« 
25 

47 
54 
54 

47 
53 



25 



PAQE. 
60 

67 

125 

88 
88 

88 
88 
88 

105 
105 



106 
106 

80 

105 
97 
97 
63 

117 

122 
121 

122 
121 

95 
101 
107 

70 

95 
65 
65 

63 
80 
63 



93 
63 

66 
68 
68 



89 
72 



205 



206 

56 
56 



68 



95 
63 



74 
70 



124 

95 

68 



8BCTIOJ*. 


PAGB. 


209 


95 


210 


96 


56 


68 


23 


63 


23 


63 


23 


63 


23 


63 


55 


68 


21 


63 


55 


68 


20 


63 


55 


68 


23 


63 


71 


70 


71 


70 



142 ANALYTICAL INDEX. 



vests only from the delivery of ihe grant . 

wMoh passes by grant or devise 
Estates 

already created or vested are subject to § 56 

at will are chattel interests, not liable as such to sale 
on execution . 

by sufferance are chattel interests . 

for life continue freehold estates 

for years are chattels real 

in common ..... 

in fee simple, and fee simple absolute 

in' joint tenancy .... 

inreal property, 'kvn^Q of 

in severalty .... 

of inheritance continue freehold estates 
Every estate in real property is a legal right 

every interest in real property is a legal right 

every instrument must be construed according to the 

intent of the parties ..... 205 95 

Evidence 

acknowledgment or proof of instrument must be re- 
corded to entitle record or transcript to be read in 267 117 

conveyance acknowledged or proved without the state, 
where parties and certifying oflScer dead, when may 
be read in . . . . . . . 262 115 

conveyance lawfully executed, acknowledged, proved, 
eertrfied before 1 Oct., 1896, but not recorded, may 
be recorded, or may be read in .... 243 169 

recorded conveyance and certificates of proofs are 

notice but not evidence where witnesses are dead 

before proof and record ..... 

Exchanged lands, dower in .... . 

Exclude beneficiaries and select others, right to, trust 

power does not cease to be imperative 
Execnte a poiver, capacity io take and 

executed but not acknowledged or proved before 1 Oct , 
1896, conveyance may be proved or acknowledged 

executed lawfully and acknowledged, proved, certified 
before 1 Oct., 1896, but not recorded, conveyance 
may be recorded, or read in evidence . 

executed uses, existing are confirmed 

executing power, though power of revocation only, in- 
strument is a " conveyance " . . . • 240 109 

execution of beneficial power may be adjudged for bene- 
fit of eve ditors 139 82 

Execution of power 

affected by fraud same as a conveyance or will . 

by survivors ....... 

consent, if necessary, of grantor or third person must be 
expressed in or endorsed on instrument and signed 

consent of all requisite, or of survivor 

governed after 1 Oct., 189'% by Real Property Law 

governed by^ 149, etc., where grantor directed insuf- 
ficient instrument ...... 

grantor's inte^it to lie oltserved ... 

in trust devolves on Court where testator omitted to 
designate ....... 

need not follow any formality directed by grantor in 
addition to sufficient by law .... 

nominal conditions m,ay be disregarded 

on death of irwstee with right of selection unexecuted 

purchaser under defective, relieved .... 

to dispose by devise or will must be by legally executed 
written will ....... 

to dispose by grant can not be by will 

when devise operates as . 
Execution of trust pow^er, defective may be cured 

m,ay be compelled for benefit of creditors, or assignees, 

where beneficiary's interest is assignable . . 142 83 

Executor 

and others, may disaffirm- any fraudulent act . . 232 106 

may have damages for fraudulent interference with 

real property of deceased . . . . • 232 107 

not to satisfy mortgage on property, but heir or devisee 2 15 96 

er administrator of life tenant may leGOYer proportion 

of rent accrued before death of life tenant . . 192 91 



263 
171 


116 

87 


137 
121 


SI 

79 


243 


109 


243 
70 


169 
7© 



161 
146 


85 
83 


153 
154 
110 


83 

84 
78 


149 
152 


83 
83 


141 


82 


150 
151 
140 
160 


83 
83 
82 
84 


147 
148 
156 
143 


83 
83 
84 
82 



REAL PROPERTY LAW. 143 



Executor's deed, or grant of appurtenances and of 
estate of testator and grantor . 
short form ....... 

Executors, estate vested in, is always in joint tenancy 
Executors of grantee or mortgagee, benefit of 
Executors of grantor or mortgagor, covenants to bind 
Executory contract for sale or purchase of lands is not 
a " conveyance " . . . 

and powers of attorney, recording . 
Existing executed uses are confirmed 
Expectancy, estate in . . . 

enumeration of estates in 
Expectant estate 

cannot he defeated hy intermediate owner, nor by dis- 
seizin, forfeiture, surrender, nor merger 
is created by devise, at deatli of testator 
is created by grant, on delivery of the grant 
is descendible, devisable, alienable .... 

liable to be defeated as provided by its creator is not 
void in its creation ..... 

support and education vixQ>j be ordered from accumula- 
tions for destitute minor entitled to 
when defeated .... 

Express trust 

authorized by Eeal Property Law not prevented bv 

§§70to73 . . . 

for any purpose not specified In § 76 vests no estate 
purposes for wMcb may be created . 
to sell, mortgage or lease for benefit of annuitants or 
legatees, or for satisfying any charge on real prop- 
erty ........ 

to sell real property tor heneM ot creditoTe 
to receive rents and profits and accumulate same 
to receive rents and profits and apply to use of any per- 
son for life or for shorter term . 
trustee to have whole estate 
Fact, fraudulent intent is question of . 
Eather atid mother, brothers and sisters of, and their de- 
scendants, how take by descent . 
Father, descent of inheritance on part of 
inherits, when .... 

nor mother, descent of of inheritance on part of neither 
"Father, on the part of the" in article IX. (Descent) 
Fee 

absolute, when grantee of power has 
createdby certain powers .... 

grant of, must be subscribed and acknowledged or wit- 
nessed or does not take effect against subsequent 
purchaser or incumbrancer .... 

"^eirs" or other words of inheritance not necessary 

to create or convey estate in . 
lim,ited on a fee ....... 

sim,ple, and fee simple absolute .... 

tail deemed fee simple since 1782 .... 

Feoffment, conveyance by, with livery of seizin, has 
been abolished ...... 

Foreign city or town, mayor must affix his seal to ac- 
knowledgment or proof before him 
foreign countries, acknowledgments and proofs in 
Forfeit o/ $100 by witness to conveyance who neglects 

or refuses to testify when subpoenaed by notary, etc. 254 112 

ofSyears^ rent by tenant who fails to give landlord 

notice forthwith of process or summons . . 195 91 

Forfeiture of provision, jointure or devise in lieu of 

dower 182 89 

estate takes effect in person in whom it wotild have 

vested by death 182 89 

Formality in execution of power directed by grantor be- 
yond what suflficient in law need not be followed . 
Form of acknowledgment by corporation 

of deed with full covenants, short .... 

of executor's deed, short ..... 

of mortgage, short ...... 

Forms of covenants, penalty $5 for using long 

of deeds and mortgages, short ..... 

other than short, of deeds and mortgages, valid . 
10 



SECTION. 


PAGE. 


221 
223 
56 
222 
222 


101 
102 
68 
101 
101 


240 

244 

70 

25 

26 


109 

110 

70 

63 

63 


47 
54 

54 
48 


66 
68 
68 
67 


47 


66 


52 

47 


68 
66 


73 

79 
75 


70 
71 
70 


76 
76 
76 


70 
70 
70 


76 

80 

229 


71 

72 
106 


288 
288 
284 
288 
280 


123 
123 
122 
123 
121 


131 
130 


80 
80 


208 


95 


205 
40 
21 
22 


95 
65 
63 
63 


205 


95 


257 
250 


113 
111 



150 


83 


258 


113 


223 


102 


223 


102 


223 


102 


274 


118 


223 


102 


22 


102 



144 ANALYTICAL INDEX. 

SECTION. PAaE. 
Fraud can affect execution of power, like conveyance er 

wiU 161 85 

grantee privy to, then conveyance fraudulent as to 
subsequent purchaser or encumbrancer with no- 
tice ........ 

Fraudulent act may he disaffirmed by executor and others 

conveyance or charge, though aubseguent purchaser 

or encumbranber has notice, if grantee privy to 

fraud ........ 

grant to one, where consideration paid by another, as 

against creditors of that time, of latter 
intent must be disproved, as against creditors of one 

who pays consideration for grant to another 
intent question of fact ...... 

practice, officer guilty of, liable in damages 
Fraudulently interfering with real property of de- 
ceased, or of insolvent corporation, association, 
partnership, or individual, damages for 
Freedom /row en.cwm6rar«.ces, covenant of . 
Freehold, grant of must be subscribed and acknowledged 
or witnesaed, or does uot tafee effect against subse- 
quent purchaser or encumbrancer 
is included in term " estate " or " interest in real prop- 
erty" ........ 

remainder of, on determination of term of years 
when estate for life of third perso7i is 
Freeholds, chattel tnterests are .... 

chattels real are ....... 

Full covenant deed, short form .... 

Further assurance, covenant of ... . 

in m^ortgage ....... 

Wntnre estate defeated by posthumous child 

is included in term " estate" or "interest in real prop- 
erty" ........ 

valid though contingency improbable 
void if power of alienation suspended more than two 
lives in being ...... 

when contingent ...... 

when vested ....... 

Future estates, creation of .... . 

definition of ....... 

estates in expectancy ...... 

in the alternative ....... 

Oeneral poTver ....... 

in trust ........ 

Oeneral rule of descent ...... 

Criving a child money without a view to a portion or 

settlement in life is not an advancement 
Crood right to convey, covenant of . , 

•Crrant 

absolutely void if property in adverse possession 

by alien ........ 

conclusive against grantor, his heirs, and subsecLuent 
purchasers from them ..... 

of appurtenances and all estate and rights of grantor . 

of fee or freehold must be subscribed and acknowledged 

or witnessed as against subsequent purchaser or 

eneumbrancer ...... 

HT cony^jajiGQ, does not pass greater estate than gran- 
tor had ........ 

OT deyiae, what estate passes by .... 

passes all estate of grantor unless different intent ex- 
pressed ........ 

takes effect only from delivery .... 

to alien ........ 

to one where consideration paid by another 
Orant a power, capacity to .... . 

Orants and devises of real property for charitable pur- 
poses ........ 93 75 

Orants hereafter executed governed by rules of law now 

in force in respect to delivery of deeds . . 209 95 

Orantee 

bound by payment of rent to grantor before notice 

to tenant, of conveyance .... 213 96 

cannot hold for breach of lease before notice to tenant, 

of conveyance . .... 213 96 



226 


105 


232 


106 


226 


105 


74 


70 


74 


70 


229 


106 


277 


119 


232 


106 


218 


97 


208 


95 


205 


95 


40 


65 


24 


63 


23 


63 


23 


63 


223 


102 


218 


97 


219 


98 


46 


66 


205 


95 


42 


66 


32 


64 


30 


64 


30 


64 


40 


65 


27 


64 


26 


63 


41 


66 


114 


78 


117 


78 


281 


121 


295 


124 


218 


97 


225 


105 


5 


60 


210 


96 


220 


101 


208 


95 


210 


96 


210 


96 


210 


96 


209 


95 


5 


60 


74 


70 


119 


79 



74 

222 
162 


70 
101 

85 


218 
112 


97 

78 


213 

82 


96 

72 



15« 


83 


149 


83 


152 


83 


222 


101 



REAL PROPERTY LAW. 145 

SECTION. PAGE. 
executes power, thongh Mb iKstrumemC of conreyanoe 

of tho estate omits to recite power . . . 155 84 

in relation to a power, Ae&intiou ot . . . 112 78 

0/ leased real property, or reversion, or rent, has same 

remedies as grantor-lessor .... 193 91 

of power, when has absolute fee .... 131 80 

of property subject Jo express trtist shall have legal 

estate 81 72 

privy to fraud i conveyance or charge is fraudulent in 
favor of subsequent purchaser or encumbrancer 

with notice 22« 105 

purchasing with money or property of another in viola- 
tion of a trust, trust results in favor of latter . 74 70 
taking tvithout knowledge of person paying considera- 
tion, trust results in favor of latter 
Orantee's representatives, covenants to benefit 
Crrautees of trust po^vers are affected by § 91, 92, 93 . 
Orantor 

has not encumbered, covenant that 
in relation to a power, definition of ... 

may receive rent from tenant before notice of convey- 
anca ........ 

ef express trust, interest remaining in . . . 

reserving absolute power to revoke is still absolute 

owner ........ 125 80 

Qrantor's 

a^ts, covenant against ...... 218 97 

directions beyond sufficient legal formalities need not 
be followed ....... 

incorrect directions do not render power void . 
intent to be observed in execution of power 
representatives, covenants to bind .... 

Oreat Britain and Ireland, acknowledgments and 

proofs in ...... . 250 ill 

Oreater estate than grantor had does not pass by srrant, 
except that it is conclusive against grantor, his 
heirs, and subsequent purchasers from them . 210 96 

Crailty of malfeasance, or fraudulent practice, officer 

is liable in damages to person injured . . 277 119 

Half-blood, relatives of the . . . . 290 123 

excluded if not blood of ancestor from whom descent, 

devise, or gift came ..... 290 123 

when inherit equally with whole blood . . . 290 123 

Heir, not executor, must satisfy mortgage on property 

descending ....... 215 96 

of grantee, or devisee, of leased property, or of reversion, 

or of rent, has same remedies as grantor-lessor had 193 91 

Heirs, conveyance void as to, if void as to creditor, pur- 
chaser, or encumbrancer .... 

meaning of, in certain remainders 

of grantee or mortgagee, benefit of . 

of grantor or mortgagor, covenants to bind 

o/ Ms 6ody, in certain remainders .... 

of life tenant take as purchaser, when 

of patriotic Indian ...... 

of person m,aker of covenant or agreem,ent answerable 

to extent of real property descended . 
or other words of inheritance, not requisite to create or 
convey estate in fee ..... 

take subject to execution of vower .... 

Hereditaments ....... 

in article VIII. included in term " real property " 
included in grant of appurtenances and all estate 
Herkimer County, Article VIII. does not apply to leases 
for life or lives, or for years, heretofore made [1 

Oct., 1896] 240 109 

Hinder, delay or defraud creditors, conveyance or assign- 

': 'S ment void with intent to . . . . . 227 105 

Holding over after receiving 30 days' notice to quit, ten- 
ant liable to double rent and damages. No equitable 
defence to this. ...... 200 93 

after giving notice of intention to quit, liability of 

t«nant 199 92 

Ho Idins real property, capacity of .... 2 60 

Holland Ijand Co., county clerk's authentication of cer- 

tifioato of acknowledgment or proof not necessary 259 114 



228 


105 


38 


65 


222 


101 


222 


101 


38 


65 


44 


66 


9 


61 


217 


97 


205 


95 


77 


71 


1 


60 


240 


109 


220 


101 



SECTION. 

120 

296 

5 

145 


PAGE. 

79 

125 

60 

83 


183 


89 


183 
3 


89 
60 


289 

289 


123 

123 


1 

92 

73 

216 


60 
74 
70 
97 


75 
42 


71 
66 



146 ANALYTICAL INDEX. 



tSLo^fv a power may be granted .... 

advancements adjusted ..... 

and when alien may acquire and transfer real property 
power must be executed ...... 

Hnsband's acts without assent of wife do not prejudice 
wife's dower or jointure ..... 

laches, defa^dtf covin or crime do not prejudice wife's 
dower or jointure . ..... 

Idiot may not tran sfer ...... 

Illegitimate child dying without issue, inheritance de- 
scends to Ms mother, or her relatives 
when inherits ...... 

Impaired or altered by Beat Property Law, nothing that 

has taken effect hefore J Oct., 1896 
Implication of la-w, trust arising by, not affected by § 92 

not affected 6y §§ 70 to 73 
Implied covenants, none in a conveyance 
Implied or resulting trust Shall not defeat title of hona 

fide purchaser without notice 
Improbable contingency, yet future estate valid 
Improving trust estate, court may authorize mortgage 

or sate for ....... 85 72 

Incidents of lineal and collateral -warranties have 

been aholished ...... 217 97 

Including himself, an executor, administrator, re- 
ceiver, assignee or other trustee may disaffirm any 
act done in fraud of creditors .... 232 106 

Income of trust property, creditors can claim surplus. 78 71 

Incumbrancer, subsequent, not affected by grant not 

acknowledged or witnessed .... 208 95 

Indexed and recorded like lis pendens, order enlarging 

time for widow's election .... 181 88 

Indexed against each person also, whose right, title or 

interest has been sold by sheriff or referee 
Indexes for recorded instruments .... 

new numerical, § 265 does not apply to . 
Indexing and recording acts for New York city block 

system not affected by Real Property Law . 
Indian, heirs of patriotic ...... 

Individual insolvent, damages for interfering with real 
property of ....... 

Indorsed upon instrum,ent by recording officer, time, 

book and page of record must be . . . 

Inherit, when collateral relatives .... 

Inheritance, definition of in Article IX. 

estates of, are freehold . . . . . . 

not provided for in the Beal Property Law shstll descend 
according to common law .... 

on part of father ....... 

on part of m^other ....... 

on part of neither father nor mother 

sole or in common ...... 

to several persons, they take as tenants in common 
words of, " or heirs," not necessary to create or convey 
estate in fee ....... 

Inherited property, mortgage on must be paid by heir 
not by executor ...... 

Inherits, when father ...... 

when motTier ....... 

Injury to building so as to be untenantable, without 

his fault, tenant may surrender . . 

Insolvent assignnaent carries beneficial trust power 
Insolvent corporation, association, partnership or in- 
dividual, damages forfraudulently interfering with 

real property of 232 106 

Insolvent deceased debtor, creditor for over $100 may 

disaffirm fraudulent act of .... 232 106 

Insolvent trustee, or one whose insolvency is appre- 
hended, may be removed ..... 92 74 
Instrument 

considered recorded from time of delivery to recording 

officer 266 117 

conveying estate of grantee of power, executes power 

though it omits to recite latter .... 155 84 

every written instrument by which title may be affected 

is a "conveyance" 240 109 



265 
265 
265 


116 
116 
116 


274 
9 


118 
61 


232 


106 


268 

286 

280 

23 


117 

122 

121 

63 


291 

288 
288 
288 
293 
293 


124 
123 
123 
123 
124 
124 


205 


95 


215 
285 
285 


96 
122 
122 


197 
144 


92 

82 



REAL PROPERTY LAW. 147 

SECTION. PAGB. 
creating, transferring, mortgaging, assigning any es- 
tate or interest, or affecting title, except will, lease 
for not over 3 years, executory contract, and power 
of attorney to convey is a " oonveyance " . . 240 109 

executing power must express or be endorsed with any 

necessary consent of grantor or third peraoo . 153 83 

in execution of power can he affected hy fraud like a 

will or oonveyance ...... 161 85 

must be construed according to intent of parties . 205 95 

must he indorsed by recording officer with time of 

record, book and page ..... 268 117 

void as to creditors, purchasers or encumbrancers, is 
void as to their heirs, successors, representatives 

or assigns 228 105 

Instruments 

acknowledgments and proofs of, before U. S. officials 

priortol Apr., 1896, confirmed . . . 257 82 

cawceWecio/ record, actions to have certain . . 276 118 

in Secretary of State's office, oopiesjmay be certified and 

recorded 246 110 

Insufficient instrument directed by grantor, power not 

void 149 83 

Insurance Of buildings under mortgage . . . 219 98 

Intended -wife, assent in jointure .... 177 88 

assent in pecuniary provisions .... 178 88 

Intent 

fraudulent, is question of fact .... 229 106 

fraudulent, must be disproved as against creditors of 
one who paid consideration where grant was taken 
by another ....... 74 70 

of grantor of power to be observed, subject to Ar- 
ticle IV 152 83 

of parties must govern construction of an instru- 
ment ........ 205 95 

to defraud purchasers and encumbrancers, convey- 
ances void ....... 226 105 

to hinder, delay or defraud creditors, conveyance or 

assienment void ...... 227 105 

Intention to quit, liability of tenant holding over after 

giving notice of ..... . 199 92 

Interest 

"all interest" is included in. grant of appurtenances 
and all estate ...... 

clause in bonds and mortgages .... 

giveyi by parent hy YirtAie ot a beneficial power, or a 
power in trust, with right of election, is an ad- 
vancement ....... 

in real property, every interest, is a legal right 
"in recu property," the term "estate" includes every 
"interest" ....... 

overdue wJwle principal due in jnortgdbges and bonds. 
owed by life-tenant may be paid by remaindermen, and 
amount, with interest, recovered from life-tenant. 
remaining in grantor of express trust 
the term *• estate " includes every interest 
vests only from delivery of the grant 
what trust interest may be alienated 
IvLtevfevvn.^ with real property of deceased, ov of insolv- 
ent corporation, association, partnership, or indi- 
vidual, damages for fraudulently 
Irrexocsihle, when power is ..... 

Ireland, acknowledgments and proofs in . . . 

Issue, meaning of, in certain remainders 

" 7*5i«es " included in grant of appurtenances and all 
estate ........ 

Joint tenancy, estate in . 

when estate in joint tenancy, and when In common . 
Jointure bars dower, if wife assents .... 

may be forfeited ...... 

not prejudiced by acts of husband without wife's assent 
or dower, widow must elect ..... 

takes effect on forfeiture, in person in whom it would 

have vested by death ..... 182 89 

Judgment in creditor's action to set aside deed, etc., of 
deeeased insolvent may provide for sale of prem- 
ises, and distribution of proceeds . . . 232 106 



220 


101 


219 


98 


295 


124 


71 


70 


205 


95 


219 


98 


233 


107 


82 


72 


205 


95 


209 


95 


83 


72 


232 


106 


128 


80 


250 


111 


38 


65 


220 


101 


55 


68 


56 


68 


177 


88 


182 


89 


183 


89 


179 


83 



148 ANALYTICIX INDEX. 

SBCTIOK. PA«1. 

•n tlaim not first neetssary to ntmnimn «t€tion of 
ereditor to set aside eonveyanee or agreement ol 
deeeased insolyent deMor, l)iLt fame may be estal)- 
lished on the trial ...... 232 1#6 

Kimtis of estates in real property .... 20 93 

Kings coanty, register, not eounty «lerk^ is recording 

officer . ^ 240 lOf 

li aches, default, covin or crime of hnetjand do BOt preju- 
dice wife's dower or jointure .... 183 89 

Kiandlord and Tenant .... ArUtlt TI. ^4 

liandlord liable for damages resulting from oecnpancy 

of premises for unlawftil purpose . . . 201 S3 

may have 3 years' rent from tenant wlio fails to forth- 

with give Mm notice of process or emmmons . 195 91 

may recover double rent and damages where tenant 
holds over after 30 days' notice t© qmit. N» equit- 
able defence to this ...... 200 93 

may recover double rent where tenant holds over after 

giving notice of intention to quit . . . 199 92 

may recover for use and occupation . . . 19© 4C 

way re-enter or proceed after 30 days' notice to tenant 

at will or hy sufferance . , . . . 198 92 

Xiands ......... 1 60 

in Article Till, is included in term *' real property " . 24t 109 

Xiaws repealed ....... 300 125 

schedule of ... . ... j>3?. 12C, 127 

the portion specified in last column of schedule heret* 

annexed 300 125 

when to take effect ...... ArUtU X. 125 

Xicase and release, deeds of, may continue to he used 

and are grants ...... 211 96 

licase, assignee of , is a " purchaser " .... 240 109 

for five years by trustee without leave of court , . 80 73 

for life, rent due recoverable ..... 191 91 

for not exceeding 3 years is not a " eonveyanee " . 240 109 

for one year or less need not be in writing . . . 207 95 

for over 5 years by trustee may be authorized by eourt 86 73 

for over 5 years made by trustee before 1895 may be 

confirmed by court ...... 86 73 

life tenanVs power to lease \B extinguished if excepted 

from his grant, or if released .... 135 81 

more than one year, contract to lease for, .void unless 

written 224 105 

n«t over 3 years not included in term " real property " 

in Article VIII 

•/ trust property, by trustee, when 
t^ order of court must be on notice to beneficiary 
jKwrer of life tenant to make lease is not assignable 
reaiiJropeWy for the benefit of annuitants or legatees 
or to satisfy any charge thereon, express trust t© 



240 
86 
87 

135 


109 
73 
73 
81 


76 


71 


205 
8© 
71 


52 
72 

70 



** Ijegal estate '^ is included in term "estate" or "in- 
terest in real property " ..... 
legal estate of express trust vests in trustee 

Ijcgal ownership, when created by right to possession. 

Ttrgul title shall be in Supreme Court where no trustee 

named in grant or devise for eharitable uses . 93 75 

shall be in trustee under grant or devise for charitable 

uses, although beneficiaries are uncertain . . 93 7S 

Xiccatees, express trust to sell, mortgage or lease for 

benefit of 76 71 

Xicssee, his assignee, or personal representative has 
same remedy against lessor, his grantee or as- 



193 


91 


245 


110 


8 


61 



Bignee, or the representative of either, as lessee 
might have had, except covenants against ineum- 
brances, for title or possession .... 

XiCtters v^tent granting real property Taa,j be recorded. 

Xtiabilities of alien holders ..... 

Jjiability of landlord, premises occupied for unlawful 

purpose 201 93 

of tenant holding over after giving notice of intention 

to quit . ... . . . 199 92 

Xiien or charge, a power is, against creditors, purchas- 
ers, or encumbrancers, from time of reeord 

Xiien of dovcer, election of undow, of devise in 

tleetion of widow of jointure or pecuniary provision in. 



127 


80 


180 


8S 


179 


8t 



SECTION. 
179 


PAGE. 

88 


200 


93 


136 

129 

23 

191 


81 
80 
63 
91 


24 
24 
34 


63 
63 

65 



REAL PROPERTY LAW. 149 



forfeiture of provision, jointure or devise in 
liife estate, at terminatimi of. tenant holding over after 
30 days' notice to quit liable to double rent and 
damages. No equitable defence to this 
effect of mortgage of lift estate by grantee witli power 
to lease ...... 

wTien changed to fee ..... 

Life estates are freehold .... 

liife lease, rent recoverable .... 

liife of third person, estate for, is chattel real after 
death of grantee ..... 

is freehold only for life of grantee . 
remainder on ..... . 

liife tenant, conveyance by, of greater estate than he 
possesses does not work forfeiture, but passes all 

be bas 212 9& 

neglects or refuses to pay interest on mortgage or other 
lien, remainderman may pay and recover amount, 
with interest, from life tenant .... 

power to make leases ...... 

extinguished if excepted from his grant, or if released, 
not assignable ....... 

Life tenant's heirs take as purchasers when 
liimitation l>y deed or will not afiected by Article IX. 
(Descent) ....... 

0f successive estates for life ..... 

liimitations, conditional ..'... 

of chattels real ....... 

liineal and collateral 'warranties have been abol- 
ished ........ 

liineal descendants in equal ^e^reetake in equal parts 
of unequal degree .;..... 

liivery of seizin has been abolished .... 

liives of more than tTvo persons, remainder on 
"liiving^' in Article IX. (^Descent) .... 

ITlaintaming a child without a view to a portion or set- 
tlement in life is not an advancement , 
Maintenance and education may be ordered from expec- 
tant estate, for destitute minor entitled to . 
Malfeasance, oflficer guilty of, liable in damages . 
Manner of execution of power, grantor's intent to be 
observed ....... 

Married w^oman, acfcno«?Ze(?firmente and proofs by, within 
the state, same as if ^unmarried .... 

capacity to take power ...... 

may dispose, imder power, without concurrence of hus- 
band ....... 

may release dower by attorney ..... 

Mayor of foreign city or town must afllx seal to ac- 
knowledgment or proof before him 
Meaning of " heirs " and *' issue " in certain remainders 
Merger of trust estate in remainder, when beneficiary en- 
titled to remainder, releases interest in rents and 
profits ........ 

Minor, destitute, entitled to expectant estate, may have 
support and education ..... 

may not transfer ...... 

Minority, when part of a life ..... 

Misconduct of vrife bars her dower as widow 
More than one beneficiary, distribution when 
Mortgage 

assignee of , is a purchaser ..... 

assignment, record no notice to mortgagor 

by alien ........ 

^ grantee of life estate, effect of ... . 

b^ tenant for life with power to lease binds the power 

and any subsequent estate 
by trustee may fie authorized \i J cowit 
eovenants ....... 

further assurance of title .... 

grant of appurtenances and all rights and estate 

power to sell in default of payment 

to benefit representatives of mortgagee . 

to bind representatives of mortgagor 

to insure ....... 

t« pay indebtedness 



233 


107 


135 


81 


135 


81 


135 


81 


44 


66 


280 


121 


33 


64 


43 


66 


39 


65 


217 


97 


282 


121 


283 


121 


206 


95 


35 


65 


280 


121 


295 


124 


52 


68 


277 


119 


152 


83 


251 


112 


122 


79 


122, 123 


79 


187 


89 


257 


113 


38 


65 


83 


72 


52 


68 


3 


60 


32 


64 


176 


87 


138 


82 


240 


109 


271 


118 


5 


60 


136 


81 


136 


81 


85 


72 


219 


98 


219 


100 


220 


101 


219 


99 


222 


101 


222 


101 


219 


99 


219 


99 



150 



ANALYTICAL INDEX. 



warranty of title ..... 

wliole sum to become due on default in insurance 
on default in interest, taxes, assessments 
confined to property mentioned, in absence of a bond 

or of covenant to pay sum secured 
discharge of, must he recorded and noted on record of 

mortgage ...... 

does not imply covenant to pay sum secured 

express trust to, for benefit of annuitants, or legatees 

or to satisfy charge ..... 

grant of appurtenances and all rights and estate of 

grantor ...... 

of property in adverse possession hinds property 

of property in adverse possession not void 

of trust property by trustee hy order of court 'must he on 

notice to beneliciary .... 

omitting covenant to pay sum secured, and no bond, the 

mortgage is confined to property mentioned 
of several parcels, certified copy may he recorded in 

any county where parcel situate 
power to sell in ..... . 

real property for henefit of annuitants, or legatees, or 

to satisfy any charge thereon, express trust to 
satisfaction of, must he recorded and noted on record of 

mortgage . . 

short form ....... 

to alien ....... 

Mortgagee entitled to execution of power by life tenant 

mortgagor with power to lease 
to have power to sell in default of payment 
under ahsolute deed intended as security derives no 

benefit from record unless defeasance also re 

corded ....... 

Mortgagee's option on default in insurance 

option on default on interest, taxes and assessments 
widow not endowed ..... 

Mortgages, acknowledgments or proofs of before U. S, 

official prior to 1 April, 1896, confirmed 
and honds. covenants and agreements in . 
certain deeds deemed ..... 
on real properly inherited or devised 
short forms of deeds and 
two or more on property in adverse possession have nre 

ference according to time of record . . ~ , 

Mortgaging any estate or interest, any instrument except 

will, lease for not over 3 years, executory con 

tract, or power of attorney to convey, is a *' con 

veyance" ....... 

Mortgagor, record of assignment of mortgage is no no 

tice to ...... 

to give further assurance of title 

to Keep buildings insured . . . . . 

Mortgagor's representatives, covenants to bind 
Mother aud father, brothers arid sisters of, and their de 

scendants, how take by descent 
descent of inheritance on the part of 
inherits, when ...... 

nor father, descent of inheritance on the part of 

neither ...... 

"on the part of the mother,** in Article IX., Descent 
Nature of estate m common, .... 

in joint tenancy ...... 

in severalty ...... 

Necessary, written conveyance, when 

Neglect or refusal of life tenant to pay interest on 



ION. 
219 
219 
219 


PAGE. 

100 

99 

98 


214 


96 


270 
214 


117 
96 


76 


71 


220 
225 
225 


101 
105 
105 


87 


73 


214 


96 


247 
126 


110 
80 


76 


71 


270 

223 

5 


117 

102 

60 


136 
219 


81 
98 


269 
219 
219 
175 


117 
98 
98 

87 


257 
219 
269 
215 
223 


113 
98 

117 
96 

102 



mortgage orocher lien, remainderman may pay, 
.... - j.j^ 

tenant 



and recover amount, with interest, from liie 



of witness to conveyance to testify under subpoena, for- 
feit $100, and notary may send to prison without 
bail ........ 

Neither father nor mother, descent of inheritance on 
the part of ....... 

Ne-w York Ciiy acts for recording and indexing accord- 
ing to block system not aflfeotedby this Real Prop- 
erty Law ....... 



225 



240 



105 



109 



271 


118 


219 


100 


219 


99 


222 


101 


288 


123 


288 


123 


285 


122 


288 


123 


280 


121 


55 


68 


55 


68 


55 


68 


207 


95 



233 



254 

288 



275 



107 

112 
123 

118 



REAL PROPERTY LAW. 151 

8ECTIOW. PAGE. 
agreement for occupation, not specifying duration, 
continues to May Ist next after possession com- 
mences under the agreement. Rent thereunder is 
payable on usual quarter days .... 202 93 

New York commissioiier, acknowledgment or proof 

by, to be authenticated by Secretary of State , . 260 114 

out of N. Y. and within TI. S. must state day and place 

in certificate of acknowledgment or proof . . 256 113 

must aflax seal ....... 257 113 

New ITork county, register, not county clerk, is record- 

ine: ofQcer 240 109 

No notice to mortgagor, record of assignment of mort- 
gage is 271 118 

Nominal conditions annexed to a power may be disre- 
garded 151 83 

Not evidence, recorded conveyance and certificates of 

proofs, where witnesses are dead . . . 263 115 

Notary or other officer may send to prison without bail, 
witness to conveyance who refuses or neglects to 

testify 254 112 

Noted on record of mortgage, discharge or satisfaction 

must be 270 117 

-Notice of action adverse to possession of tenant . . 195 91 

of intention to quit, liability of tenant holding over 

after giving 199 92 

of termination of tenancy at will or by sufferance, how 

served ....... 197 92 

only constructive, on record of conveyance and certifi- 
cates of proof s when witnesses are dead . . 263 115 
to beneficiary where trust property is conveyed, mort- 
gaged, or leased ...... 87 73 

to g[icit at termination of estate for life or years, tenant 
liable to double rent damages. No equitable de- 
fense to this. 200 93 

Number of owners of an estate .... 55 68 
Numerical indexes, § 265 does not apply to new in- 
dexes 265 116 

Occupancy for unlawful purpose, landlord liable for 

any damages ...... 201 93 

Occupant or tenant may surrender premises, when . 197 92 

Occupation cf/irf wse, landlord may recover for . . 190 91 

Office of Secretary of State, copies of instruments in, 

may be certified and recorded .... 246 110 

Officer taking achnowledgment or proof must indorse or 

attach certificate to conveyance . . . 255 112 

must know, or have satisfactory evidence of identity 

of person acknowledging .... 252 112 

with power to take acknowledgment may send to prison 
without bail witness to conveyance who refuses or 
neglects to testify . . . . 254 112 

OtRcers guilty of malfeasance liable toTd-divaagen . . 277 119 

Official of one IT. 8., or of Canada, acknowledgment or 
proof by, must be authenticated by Secretary of 
State of State^or clerk, register, recorder or pro- 
thonotary of county, or clerk of court of county 
having seal . . . . . . . 260 114 

Officials, various U. S., acknowledgments before, prior 

to 1 April, 1896, confirmed .... 257 133 

may take acktiowledgmetits or proofs . . . 250 111 

must affix seal to acknowledgment or proof . . 257 113 

Omission to recite poi>ver in instrument conveying its 

grantee's estate . . . . . . 155 84 

On forfeiture of jointure, devise, or provision in lieu of 
dower, estate vests in person in whom it would 

have vested by death 182 89 

On the part of nei^^er/a^A-er nor mother, descent of in- 
heritance ....... 288 123 

7Ae/a«Zfcer, descent of inheritance .... 288 123 

the father or mother in Article IX .... 280 121 

the mother, descent of inheritance .... 288 123 

One year lease, or less, need not be in writing . . 207 95 

Operation of law may create or declare an estate or 

trust 207 95 

Option of mortgagee on default of interest, taxes or 

assessments ....... 219 98 

Order of recording . , . . 266 117 



232 

73 

245 

9 

88 


106 
70 

110 
61 
73 


182 
182 
178 
274 


89 

89 

88 

118 


283 


121 


287 
283 


122 
121 



152 ANALYTICAL IKDEX. 

SBCnON. PAGB. 

Other states, acknowledgments and proofs in . . 249 111 

Oimcr may maintain action to have any recorded instru- 

nient declared void or invalid and cancelled . 276 118 

Parol lease or other agreement naay be used ae evidence 

of amount of compensation for use and occupation 190 91 

"Part of the father" or "mother" in Article IX. 

[Descent] 280 121 

Part performance, in cases of, powers of courts of 
equity to compel specific performance not 

abridged by Article VII 234 107 

Parties to conveyance, and certifying officer dead, where 

acknowledged without tho state, how recorded . 262 115 

Partnership, damages for fraudulently interfering with 
real property of insolvent .... 

Passive trust, trustee not to take .... 

Patent panting real property, letters must T»e recorded . 
Patriotic Indian's heirs may hold and convey 
Paying money to trustee^ person protected 
Pecuniary provision in heu of dower takes effect on for- 
feiture in person in whom it would have vested by 
death ........ 

when forfeited ....... 

when dower harred by ..... . 

Penalty $5 for using long forms of covenants . 
Per capita and not per stirpes, lineal descendants of 
equal degree take ...... 

Per stirpes and not per capita, brothers and sisters and 
their descendants take by descent 
lineal descendants in unequal degree take 
Performance, powers of courts of equity to compel 

specific, not abridged by Article VII . . . 234 107 
Period of suspension of alienation dates from time of 
creation of power, not from date of instrument ex- 
ecuting . 158 84 

Person, acknowledging oflSeer must know ©r have satis- 
factory evidence of identity of . . . . 252 112 
treating trust may declare to whom property shall 

belong on failure or termination of trust . . 81 72 

may grant or devise property subject to execution of 

the trust 81 72 

fra/udulently interfering with real property of deceased, 
©r of insolvent corporation, association, partner- 
ship er individual, is liable to executor, adminis- 
trator, receiver or trustee .... 
©/ Mw#oi*n<J min<i may not transfer 
paying money to trustee protected .... 
to whom any estate or interest is conveyed for valuable 

consideration is a "purchaser" . . . 240 109 

Vev»9»al property advancement mviit "be adjusted out of 
surplus of personal property to be distributed to 

next of kin, if possible 296 125 

Personal representative, conveyance void as to, if 

void as to creditor, purchaser or encumbrancer . 228 105 

of grcmtee, or devisee, or assignee of leased real prop- 
erty, or of reversion, ©r of rent, has same remedies 

as lessor had 193 91 

•/ lessee, has same remedies his lessee had except on 
covenants against encumbrances, for title, or pos- 
session ....... 

Possession, estates in ..... . 

included in grant of appurtenances and all rights 
when right to, creates legal ownership 
Posthumous children ...... 

Postiiumous children and relatives begotten hefore his 
death shall inherit as if horn in lifetime of intes- 
tate 292 124 

Power 

additional formalities directed by grantor heyond suffi- 
cient by law need not be followed 
beneficial ........ 

heneflcial, suhject to claims of creditors . 

tan be executed only by written instrument 

tan only be created by written instrument . 

tapacity of married woman to take .... 

tapaciiy to grant ....... 

tapaeity to take and execute ..... 



232 


106 


3 


60 


88 


73 



193 


91 


25 


63 


220 


101 


71 


7© 


46 


66 



150 


83 


116 


78 


139 


82 


145 


83 


207 


95 


122 


79 


119 


79 


121 


79 



EEAL PROPERTY LAW. 163 

SSOTIOK. JPAGX. 

•mpaeity to take under power ..... 159 84 

tensent of alt requisite, or of survivor, to execution of. 154 84 

definition of Ill 78 

eopecwWon o/, affected t)y fraud like conveyance or will 161 85 

•f toeneflcial, may be adjudged for benefit of creditors 139 82 

©ndeathof trustee with right of selection unexecuted 140 82 

general 114 78 

grantor's intent to he observed in execution of . . 152 83 

now may be granted ...... 120 79 

in trust, execution defective, proper execution ad- 
judged 143 82 

execution devolves on court where testator omitted 

to designate 141 82 

general 117 78 

passes to trustee, or committee of estate, or assignee 

for benefit of creditors ..... 144 82 

special 118 79 

with a right of selection, estate or interest given by 

parent, by virtue of, is an advancement . . 295 124 

irrevocable, when ...... 128 80 

must be executed by all in whom vested, or their sur- 
vivor or survivors ...... 146 83 

necessary consents of grantor or third person must be 
expressed in or endorsed on instrument executing, 

and signed ....... 153 83 

nominal conditiont in execution of, may be disregarded 151 83 
not void though grantor directed execution by insuffi- 
cient instrument ...... 149 83 

•/oitcnaiiow, as to chattels real .... 39 65 

suspension of ...... . 32 64 

©Z* ai)po»nimenf not to prevent vesting ... 31 64 
of attorney to convey not considered revoked unless re- 
vocation recorded ...... 273 118 

not governed by Article IV ..... 11© 78 

realpropertyisnot a "conveyance" . . . 240 109 
of disposition is absolute when grantee in his lifetime 

can dispose of fee for his own benefit . . 133 81 

of Ufe tenant to make leases ..... 135 81 

is extinguished if excepted from his grant or if released 135 81 

may be released ....... 135 81 

omission to recite in instrument conveying its grantee's 

estate 155 84 

purchaser under defective execution of relieved . . 160 84 

reservation of ...... . 124 79 

special 115 78 

subject to condition ...... 134 81 

until vested is not subject to ^ 130 to 133 . . 134 81 

to devise, effect of in certain cases .... 132 81 

to dispose by devise or will must be by legally executed 

written will 147 83 

■fey grant cannot be executed by a will . . . 148 83 

to revoke, effect of ...... 125 80 

reserved to grantor's benefit, he is still absolute owner 125 80 

to sell in a mortgage ...... 126 80 

in default of payment of mortgage . . . 219 98 
too extensive disposition or charge by virtue of, is not 

void . . . . . . . . 157 84 

though power of revocation only, instrument executing 

is a " conveyance " ..... 240 109 

trust power, when imperative .... 137 81 

when power a lien ox ch.a,xgQ . . . . . 127 80 

when devise operates as execution of ... 156 84 

when grantee of power has absolute fee . . . 131 80 

Powers ....... Article IV. 90 

abolished as they existed 3\ Bee., 1929 . . . 110 78 

certain powers create a fee ..... 130 80 

certain devises to be deemed ..... 77 71 

division of . . . . . . . . 113 78 

governed after 1 Oct., 1896, by Article IV . . . 110 78 

of attorney, recording executory contracts, and powers 244 110 
of courts of equity to compel specific performance are 

not abridged by Article VII .... 234 107 

h^st powers, and grantees of trust powers, are af- 
fected by §§ 91, 92, 93 162 85 

Preference according to time of record, two or more 

B&ortgages on property in adverse possession 225 105 



197 


92 


205 


95 


85 


72 


262 


115 


219 
219 
219 


98 
98 
98 



154 ANALYTICAL INDEX. 

8BCTION. PAGE. 

Premises may be surrendered by tenant or occupant, 
when ........ 

*' Present estate » is included in *• estate " or ** interest 
in real property " ...... 

Preserving trust estate, court may authorize mortgage 
or sale ........ 

Presumptive evidence, recorded aflSdavits proving 

deaths of parties and certifying officer to deed 

acknowledged without the state 

Principal sum shall become due, covenant or agreement 

in mortgages and bonds ..... 

if interest defaulted ...... 

if default in tax or assessment .... 

Prison Tvithout bail for neglect or refusal of witness to 

conveyance to testify under subpoena . . 254 112 

Proceeding void as to creditors, purchasers or encum- 
brancers, is void as to their heirs, successors, repre- 
sentatives or assigns ..... 228 105 
Proceeds of sale under judgment in creditor's action to 
set aside transfer, etc., of deceased insolvent may 
be brought into court ..... 
Profits, and rents, accumulation void except as allowed 

anticipation of directed accumulation of . 

disposition of, governed by rules for future estates 

express trust to receive, and apply to use of person 
during life or for shorter term .... 

Profits, express trust to receive and accumulate 

included in grant of appurtenances and all estate 

undisposed belong to next eventual estate 
Proof by subscribing witness ..... 

of conveyance by judge of Canadian court of record 
must be authenticated by clerk of court 

by N. T. commissioner must be authenticated by Secre- 
tary of State ....... 

by official of one of TJ. S.. or of Canada, must be au- 
thenticated by Secretary of State of State, or clerk, 
register, recorder, or prothonotary of county, or 
clerk of court of county having seal . 

certi^cafeo/ by officer taking .... 

contents of certificate of authentication 

of Canadian authentication ..... 

executed but not nroved before 1 Oct., 1896 

without the state where parties and certifying officer 
are dead ....... 

must be authenticated in certain cases 

of Holland Land Co., or of Pulteney estate, does not 
need county clerk's certificate .... 

tahen out ofN. Y., before N. Y. commissioner, mayor of 
foreign city, or any U. S. official, must be under seal 

where witnesses are dead ..... 

of execution of conveyance can only be made by witness 

who subscribed at time of execution . . . 242 109 

of instrument, or acknowledgment must also be re- 
corded to entitle record or transcript read in 
evidence 267 117 

of letters patent granting real property not necessary 

other than great seal of state .... 245 110 

taken by N. Y. commissioner out of N. Y. and in U. S. 

must state day and place .... 256 113 

Proofs of conveyances by married women within the 
state same as by unmarried .... 

in Canada ........ 

In foreign countries ...... 

In Great Britain and Ireland ..... 

in other states ....... 

within the state ....... 

of deeds, mortgages OT other instruments, made in due 
form before U. S. official before 1 April, 1896, are 
confirmed ....... 

Proper execution adjudged where execution of trust 
power defective . . . . . 

Properties of estate in common .... 

in joint tenancy ....... 

in severalty ....... 

** Property " included in grant of appurtenances and all 

estate . . - . . . . . 220 101 



232 
51 
52 
50 


106 
67 
68 
67 


76 
76 

220 
53 

253 


71 
71 

101 
68 

112 


260 


114 


260 


114 


260 
255 
261 
261 
243 


114 
112 
114 
114 
109 


262 
260 


115 
114 


259 


114 


257 
263 


113 
115 



251 


112 


250 


111 


250 


111 


250 


111 


249 


111 


248 


110 


257 


113 


143 


82 


55 


68 


55 


68 


55 


68 



240 


109 


160 


84 


2 


60 



REAL PROPERTY LAW. 155 

SECTION. PAGE. 
Property inherited or derised, mortgages on . . 215 96 

Prorision in lieu of dower takes effect on forfeiture 

in person in whom it would liave yesteo by death 182 89 

when forfeited 182 89 

Pulteney estate, county clerk's authentication to certifi- 
cate of acknowledgment not Decessary . . 259 114 
Purchase money mortgage, surplus proceeds of sale 

under ........ 174 87 

Purchase of lands, executory contract for, is not a 
"conveyance" ...... 

under defective execution of power 

who may take hy ...... 

Purchaser /or valuable consideration, conveyance to is 
valid after conveyance providing for revocation, 
although same not expressly revoked . . 231 106 

withou notice, title not affected or impaired by 

Article VII 230 106 

includes every person to whom property is conveyed 

for valuable consideration, and every assignee of 

mortgage, lease or other conditional estate . 240 109 

subsequent, not affected by grant not acknowledged or 

witnessed ....... 

unrecorded conveyance void as to subsequent bona fide 
with notice, conveyance or charge fraudulent as to 
subsequent, if grantee was privy to fraud . 
Purchasers, bona fide protected .... 

conveyance void as to, is void as to their heirs or as- 
signs ........ 

convej^acces void with intent to defraud 
power is a lien against, from time of record 
subsequent, without notice, protected against express 

trust not contained in conveyance to trustee 
when heirs of life tenant take as . 
Purposes for which express trusts may be created 
Qualities of expectant estates ..... 

Quarantine, widow's ...... 

Question of fact, fraudulent intent is 

Quiet enjoyment, covenant of .... 

Raising funds to preserve orimprove trust estate, court 

may authorize mortgage or sale ... 85 72 

Real Property advancement must be adjusted from 
surplus of real property descendible to heirs, if 

possible 296 125 

descends subject to execution of a valid power in 

trust 79 71 

" Eeal Property '' in Article VIII includes lands, tene- 
ments and hereditaments and chattels real except 
lease for not over 3 years .... 240 109 

in Article IX includes every estate, interest, right, 
legal and equitable, except those determined or 
extinguished by death of intestate; leases for 
years; estates for life of another, and property 
held in trust not devised by beneficiary . . 280 121 

in the Real Property Law ..... 1 60 

to descend to heirs or devisees subject to execution of 

power ........ 77 71 

Real Property Ija^v ...... 1 60 

does not affect acts for recording and indexing New 

York city under block system ... 275 118 
does not alter or impair anything that has taken ef- 
fect before 1 Oct., 1896 1 60 

Receive and accnmulate rents and profits, express 

trust to 76 71 

Eeceive rents and profits, express trust to, and apply 

to use of any person during life or shorter term . 76 71 

Receiver may disaffirm any fraudulent act . . 232 106 

may have damages for fraudulent interference with 
real property of deceased, or of insolvent corpora- 
tion, association, partnership or individual . 232 106 
of trust estate may be appointed by court pending 

appointment of new trustee .... 92 74 

Recite povrer, amission to, from instrument conveying 

estate of grantee ...... 155 84 

Record cancelled of certain instruments, actions to have 276 118 

of acknowledgment or proof also necessary for record 

or transcript of instrument to be read in evidence 267 117 



208 


95 


241 


109 


226 


105 


75 


71 


228 


105 


226 


105 


127 


80 


84 


72 


44 


66 


76 


71 


49 


67 


184 


89 


229 


106 


218 


97 



156 ANALYTICAL INDEX. 

SECTION. PAGE. 

of revocation ...... 273 118 

or transcript of instrument cannot be read In evidence 

unless acknowledgment or proof also recorded . 267 117 

Recorded and indexed like Us penaens, order enlarging 

widow's time to elect ..... 181 88 

conveyance, lawfully executed, acknowledged, proved, 
certified before 1 Oct., 1896, but not recorded, 
maybe 243 109 

from time of delivery to recording officer, every instru- 
ment is considered ...... 266 117 

Recording and indexing acts for New York city block 

system not affected by this Real Property Law . 275 118 

assignment is, H-O notice to mortgagor or his heirs or 

representatives ...... 271 118 

assignment of mortgage, eSeGt ot .... 271 118 

J2ecorcfm.gr &ooA;s for deeds and mortgages . . 264- 116 

Becordmg copies of instruments whicli are in Secretary 

of State's office 246 110 

discharge of mortgage ...... 270 117 

executory contracts and powers of attorney . . 244 110 

Instruments Affecting Real Property . . Article VIII. 108 

of conveyances ....... 241 109 

acknowledged or proved without the state, where 

parties and certifying officer are dead . . 262 115 

heretofore acknowledged or proved . . . 243 109 

made by treasurer of Connecticut .... 272 118 

of letters patent granting real property . . . 245 110 

" Recording officer " means county clerk except in New 
York, Kings and Westchester, where it means 
register of the county ..... 240 109 

must enter on record hour, day, month and year of 
record, and indorse same on instrument with book 
and page 268 117 

must record instruments in the order and as of the time 

of delivery to him therefor .... 266 117 

must record satisfaction or discharge of mortgage and 

note same on record ..... 270 117 

Recording, order of ..... . 266 117 

time of 268 117 

Referee's deed must be indexed also against each person 

whose right, title or interest was sold . . . 265 116 

Refusal of witness to conveyance to testify under sub- 
pcena, forfeit $100, and notary may send to prison 
without bail 254 112 

or neglect of life-tenant to pay interest on mortgage or 
other lien, remainderman may pay and recover 
amount, with interest, from life-tenant . • 233 107 

Register is the recording officer in New York, Kings and 
Westchester counties, in others it is the county 
clerk 240 109 

may charge $5 in addition to fees for recording instru- 
ments using long forms of covenants . . 274 118 
Relatives begotten before death of intestate but born 
thereafter inherit as if bom in his lifetime 

of the half-blood ....... 

excluded if not of blood of ancestor from whom 'de- 
scent, devise, or gift came .... 

inherit equally with whole blood, when . 

when collateral inherit ...... 

Release dower, divorced woman may 

married woman may, by attorney .... 

Religious uses, conveyance or devise for, not invalid 

for indeflniteness or uncertainty of beneficiaries . 

Remainder, definition of ..... 

in fee on fee tail to vest on death of first taker . 

valid as contingent limitation .... 

limited on estate for life in term of years 

limited to heirs for life tenant, they take ae purchasers 

may be limited on a contingency .... 

not limited on contingency defeating precedent estate 
T?p^TiPTi 1"fi.lift^ ftflTf^Pti 

of freehold or chattel real on determination of term of 
years ........ 

on lives of more than two persons .... 

on term of years, contingent ..... 

estate for life as . 



292 


124 


290 


123 


290 


123 


290 


123 


286 


122 


186 


89 


187 


89 


93 


75 


28 


64 


22 


63 


22 


63 


40 


65 


44 


66 


43 


66 


45 


66 


40 


65 


35 


65 


36 


65 


37 


65 



REAL PROPERTY LAW. 157 

BECTIOir. FAOB. 
Keataindemiaii, when life tenant neglects or refoAes 
to pay interest on mortgage or other lien, may pay, 
and recoTer amount, with interest, from life tenant 23S 106 

Rentainders, effect on valid, of determination of pre- 
cedent estate before contingency 
incltided in grant of appurtenances and all estate 
meaning of " heirs" and " issue " in certain 
on estates tail . . . . . 

on life of third persons ...... 

Remoteness does not prevent equal parts to collateral 
relatives of ectual degree of consanguinity . 
to lineal descendants iu equal degree 
ReiuoTal of trustee may he made by court, except in 
implied trust ....... 

Renewal, effect of on sub-lease .... 

Rent apportionaUe, when ..... 

doubled where tenant holds over after giving notice of 
intention to quit ...... 

due on life leases recoverable .... 

in New York city under agreement not specif yins dura- 
tion of occupation continues to May Ist next after 
possession commences under agreement, and is 
payable on usual quarter days .... 

may be paid to grantor before notice of conveyance 
tenant not liable for, after surreiider 
Rents and profits, accumulations, void except as allowed 
anticipation of directed accumulation of . 
disposition governed by rules for future estates 
express trust to receive and accumulate 
and apply to use of person during life or shorter term 
"Rents" included iu grant of appurtenances and all estate 
Repealed, Revised statutes hereby .... 

schedule of laws ...... 

that portion of laws specified in last column of 
schedule annexed ...... 

Representatives, conveyance void as to personal, if void 
as to creditor, purchaser or encumbrancer . 
of grantor or mortgagor, covenants to bind . 
Requisites of acknowledgments .... 

Reservation of povFer ...... 

to revoke to grantor he is still absolute owner . 
Resignation of trustee may be accepted by court, ex- 
cept in implied trust ..... 

or removal of trustee, appointment of successor 
Resist any act done In fraud of creditors, an executor, 
administrator, receiver, assignee, or other trustee 

may 232 107 

any fraudulent act of deceased insolvent debtor, a 

creditor for over $100 may .... 232 107 

Resulting trust shall not defeat title of bona flde pur- 
chaser without notice ..... 

Reversion, definition of . 

Reversions, estates in expectancy .... 

Included in grant of appurtenances and all estate 
Revised statutes, parts of repealed hereby 
Revocation only, instrument executing power of, is a 
"conveyance" ...... 

to be recorded ....... 

«* Right," " all " included in grant of appurtenances 

and all estate 220 101 

and interest of beneficiary of any other trust than to re- 
ceive and apply rents and profits may be transferred 83 72 
of beneficiary of express trust to receive rents and 
profits and apply to use of any person can not be 
transferred by assignment or otherwise . . 83 72 
of curtesy included in grant of appurtenances and all 

rights 220 101 

of dower included In grant of appitrtenances and all 
rights ........ 

to convey, covenant of good right .... 

to jjossession, when creates legal ownership 
to select beneficiaries and exclude others, trust power 
still remains imperative ..... 

Rights of purchaser or encumbrancer for valuable con- 
sideration protected ..... 

wMre property or lease is transferred 



48 


67 


220 


101 


38 


65 


22 


63 


34 


65 


286 


122 


282 


122 


92 


74 


196 


92 


192 


91 


199 


92 


191 


91 


202 


93 


213 


96 


197 


92 


51 


67 


52 


68 


50 


67 


76 


71 


76 


71 


220 


101 




126 




126 


300 


125 


228 


105 


222 


101 


252 


112 


124 


79 


125 


80 


92 


74 


92 


74 



75 


71 


29 


64 


26 


63 


220 


101 




126 


240 


109 


273 


118 



220 

218 

71 


101 
97 
70 


137 


81 


230 
193 


106 
•1 



SECTION. 

281 


PAGE. 
121 


209 


95 


85 

85 

224 

240 


72 

72 

105 

109 



76 


71 


223 


102 


223 


102 


223 


103 




126 



158 ANALYTICAL INDEX. 



Kuls-s of descent, general .... 

Rules of law now in Xorce [1 Oct., 1896] in respect to de- 
livery of deeds apply to grants hereafter executed 
Sale by trustee in contravention of trust expressed in in- 
strument creating estate is void 
by trustee may be authorised hy court 
contract of, void unless -written .... 

of lands, executory contract for is not a " conveyance " 
of premises may be decreed in suit of creditor to set 
aside deed, etc., of deceased insolvent, together 
■with distribution of proceeds .... 232 106 

of trust estate which is an undivided share may be 

authorized by court ..... 85 72 

of trust property by trustee by order of court must be on 

notice to beneficiary ..... 87 72 

Satisfaction of mortgage must be recorded, and noted 

on record ....... 270 117 

Satisfying charge on real property, express trust to 

sell, mortgage or lease for purpose of 
Schedule A, Deed with full covenants, short form 
Schedule B, Executor's deed, short form 
Schedule C, Mortgage, short form .... 

Schedule of ILiaws Repealed .... 

Schenectady county, Article VIII. does not apply to 
leases for life or lives, or for years, heretofore 

made [1 Oct., 1896] 240 109 

Seal must be affixed to acknowledgment or proof by N. Y. 
commissioner out of state, mayor of foreign city, 

or U. S. official 257 113 

of the State, not acknowledgment or proof, necessary 

to recording letters patent granting real property. 245 110 

Secretary o( State's office, copies of instruments in, 

may be certified ard recorded .... 246 110 

Secretary of State to authenticate acknowledgment or 

proof by N. Y. commissioner .... 260 114 

Securities in the nature of mortgages recorded in mort- 
gage books ....... 

Seizin, covenant of . 

livery of, has been abolished ..... 

Select beneficiaries and exclude others, right to, does not 

make trust power less imperative 
Sell, contract to, void unless written .... 

mortgage or lease for benefit of annuitants, or legatees, 
or to satisfy any charge on real property, express 
trust to ........ 

real property for benefit of creditors, express trust to . 
Several parcels in one conveyance or mortgage, certi- 
fied copy may be recorded in any county where 
parcel situate . .... 

Several persons take an Inheritance as tenants in 
common ....... 

Severalty, estate in ...... 

SheriiPs deed must be indexed also against each person 

whose right, title or interest was sold 
Short form of deed with full covenants 

of mortgage ....... 

of executor's deed ...... 

Short Title ...... 

Sisters and brothers and their descendants take by 
descent per stirpes and not per capita 
of father and mother, and their descendants, how take 
by descent ....... 

Sole inheritance, or in common .... 

Special covenants in a conveyance do not cause any 
implied covenants ...... 

Special poorer ....... 

in trust ........ 

Specific performance, powers of courts of equity to 

compel, not abridged by Article VII . 
State, great seal of, not acknowledgment or proof, 
necessary to recording letters patent granting real 
property ....... 

acknowledgments and proof s within the 
State's ojgfice, copies of instruments in Secretary of, may be 
eertified and recorded ..... 

States, other, acknowledgments and proofs in 



264 
218 
206 


116 
97 
95 


137 
224 


81 
105 


76 
76 


71 

71 


247 


110 


293 
55 


124 

68 


265 
223 
223 
223 

1 


116 
102 
103 
102 
60 


287 


122 


288 
293 


123 
124 


216 
115 
118 


97 

78 
79 


234 


107 


245 

248 


110 
110 


246 
249 


110 
111 



REAL PROPERTY LAW. 159 

SECTION. PAGE. 

St« lutes, parts Of Revised, repealed liereljy . . 126 

Sub-lease, effect of renewal OB .... 196 92 

Subpcena of notary, or other oflacer, must Ibe obeyed by 

witness to conveyance ..... 254 112 

Subsequent bona fide encinribrancer acquires superior 

title by conveyance first duly recorded . . 210 96 

&onaj^rfe»wrc^aser acquires superior title by convey- 
ance first duly recorded ..... 210 96 

unrecorded conveyance void as to . . . . 241 109 

creditors without notice pretected against f^xpress trust 

not contained in conveyance to trustee . . 84 72 

encumbrancer not affected by grant not acknowledged 

or witnessed ....... 208 95 

purchaser not affected by grant not acknowledged or 

witnessed 208 95 

purchaser or encumbrancer for valuable consideration, 
conveyance to is valid after conveyance providing 
for revocation, altbougb same not expressly re- 
voked by grantor, or by tbird party holding power 
to revoke . ...... 231 106 

with notice, yet conveyance not fraudulent unless 

grantee privy to fraud ..... 226 105 

purchaser without notice protected against express 
trust not contained in conveyance to trustee 
Subscribing ^vitness, proof by .... 

Successive estates for life, limitation of . 
Successors, conveyance void as to, if void as to creditor, 
purchaser or encumbrancer .... 

Successors o/^rantee or mortgagee, benefit of 
o/grra/itor or mortgagor, covenants to bind 
Sufferance, estates by are chattel interests ; not liable 
as such to sale on execution .... 

termination by notice, of tenancy by sufferance 
Sullivan County, Article VIII. does not apply to leases 
for life or lives, or for years, heretofore made [1 

Oct., 1896] 

Support and education maybe ordered destitute minor 
entitJed to expectant estate .... 
Surplus income of trust property liable to creditors 
Surplus proceeds of sale under purchase money mort- 
gage 

Surrender and renewal of lease by landlord and lessee 
do not impair any right or interest of either, or of 
under-lessee ....... 

of premises by tenant or occupant, when 

of under-lease not requisite to surrender of original 

lease where new lease given .... 196 92 

Survivor or survivors of those in whom vested may 

execute power ...... 146 83 

Survivor's consent sufficient to execution of power 

needing consent of two or more 
Suspension, computation of term of . 

of power of alienation ...... 

as to chattels real ...... 

Tail, estates abolished; remainder thereon . 
ICsiU^e a special and beneficial power, GSiT^Q^Gitj to 

and execute power, capacity to ... . 

power, capacity of married woman to . . . 

Takes effect only from delivery, grant 
this Real Property Law, 1 Oct., 1896 
Taxes in default, principal to become due in mort- 
gages and bonds ...... 

Tenancy at will or by sufferance, termination by notice . 
by the curtesy, Article IX. (Descent) does not affect 
in common ....... 

unless expressed to be in joint tenancy 

pint, every estate vested in executors or trustees is . 

must be expressly declared ..... 

Tenant and landlord liable severally and jointly for 
damages resulting from occupancy for unlawful 
purpose ....... 

Tenant, attornment by ..... . 

not requisite to validity of conveyance of property 
occupied by him ...... 

attornment to stranger absolutely void 

for life may take power to make leases for 21 years 

11 



84 

253 

33 


72 

112 

64 


228 
222 

222 


105 
101 
101 


23 

198 


63 
92 


240 


109 


52 

78 


68 
71 


174 


87 


196 
197 


92 
92 



154 


84 


158 


84 


32 


64 


39 


65 


22 


63 


123 


79 


121 


79 


122 


79 


209 


95 


301 


125 


219 


98 


198 


92 


280 


121 


55 


68 


56 


68 


56 


68 


56 


68 


201 


93 


194 


91 


213 


96 


194 


91 


123 


79 



160 



ANALYTICAL INDEX. 



for life or years, conveyance by him of greater estate 
tnan lie possesses does not work forfeiture, but 
passes all lie lias ...... 

with general or beneficial power to devise inheritance 
has absolute fee under §§ 129, 130. 13 L 

holding over after giving notice of intention to quit, 
liability of ...... . 

after receiving 30 days' notice to quit liable to double 
rent and damages ; no equitable defence to this 

may pay rent to grantor before notice of conveyance . 

must forthwith give notice to landlord of process or 
summons or forfeit three years' rent . 

not liable to grantee for breach of lease before notice of 
conveyance ...... 

not liable to pay rent after surrender 

or occupant may surrender premises when 
Tenants in common, inheritance descending to several 
persons they take as ..... 

Tenements ........ 

in Article VIII. (Recording) included in term "real 
property" ....... 

included in grant of appurtenances and all estate 

Tenure of Real Property .... 

Term** conveyance" in Article YIII. (Recording) includes 

every written instrument, except will, lease for 

not over 3 years, executory contract, and power of 

attorney to convey .... 

in Article VII (Conveyances) includes every instru 
ment except a will ..... 

** died " in Article IX. (Descent) 

" Aeir*," or other words of Inheritance not necessary 
to create or convey estate in fee 

"m^eritowce" in Article IX. (Descent) 

" Wvm</" in Article IX. (Descent) 

not exceeding 3 years, instrument is not a " convey 
ance " . 

Term 0/ year*, contingent remainder on . 

estate for life in . 

estate for life as remainder on 

Term of suspension, computation of . . . 

Term "on the part of the father" or "mother" in Article 

IX. (Descent) ...... 

"purchaser" in Article VIII. (Recording) includes 
every person to whom any estate or interest is 
conveyed for valuable consideration, and every 
assignee of mortgage, lease, or other conditional 
estate ........ 

" real property " iu AxXXeXe YITL. (Recording) includes 
lands, tenements, heraditaments, and chattels 
real except lease for not over 3 years 

in Article IX. (Desceni) 

"recording oj^er" in Article VIII. means county 
clerk except in New York, Kings or Westchester 
counties, where it means register 
Termination of hfe estate or for years, tenant holding 
over after 30 days* notice to quit liable to double 
rent and damages. No equitable defence to this . 

of trusts for benefit of creditors .... 
Ternts, definitions and use of in Article VIII. (Record- 
ing) 

in Article IX. (Descent) ..... 

in Article I. (Tenure) ...... 

in Article VII. (Conveyances and Mortgages) 

terms "estate" and "interest in real property" in 

Article VII. (Conveyances and Mortgages) include 

every such estate and interest .... 

Testator omitted to designate by whom, execution of 

power in trust devolves on court 

Testator' s power to dispose by ivill not affected by § 207. 
Threatening to violate his trust, trustee may be re- 
moved ........ 

Three years' lease or under is not a " conveyance " 

not included in term " real property " in Article VIII. 
(Recording) ..... 
IHvax) of creation of expectant estate by devise is death of 
testator .... . . 



SECTION. 


PAGE. 


211 


9G 


132 


81 


199 


92 


200 
213 


93 
96 


195 


91 


213 
197 
197 


96 
92 

92 


293 

1 


124 
60 


240 

220 

Article I. 


109 

101 

60 



240 

205 

280 

205 
280 
280 

240 
36 

.37 
40 

158 

280 



240 



240 

280 



240 



109 

95 
121 

95 
121 
121 

109 
65 
65 
65 

84 

121 



109 



109 
121 



109 



200 
90 


93 

74 


240 

280 

1 

205 


109 

121 

60 

95 


205 


95 


141 

207 


82 
95 


92 
240 


74 
109 


240 


109 


54 


68 



SECTION. 
54 
25 
152 


PAGE. 
68 
63 
83 


269 
268 


117 
117 


242 


109 


158 
181 


84 
88 


220 
218 
219 


101 

97 

100 


230 

7 


106 
61 


240 
219 


109 
100 



REAL PROPERTY LAW. 161 



by grant is delivery of the grant 

of enjoyment of estates ..... 

of execution of power, grantor's intent to be observed 

of record of defeasance must be same with reeord of 
deed intended as security for grantee to derive 
advantage from record ..... 

ofrecor(Zi>igf instruments ..... 

of subscription hy proving witness must be same as exe- 
cution of conveyance ..... 

of suspension of alienation dates from creation of 
power ....... 

of xoidow to elect may be enlarged by court 
*♦ Title," " all," included in grant of appurtenances and 
all estate ...... 

Title, covenant of icarranty ot .... 

further assurcaice of, in mortgage 

of purchaser or encumbrancer for valuable considera- 
tion, without notice, not aflfected or impaired by 
Artlcl*^ VII. (Conveyances and Mortgages) . 

through alien cau not be questioned 

to any real property may be affected, any instrument by 
which, except wiU, lease for not over 3 years, exe- 
cutory contract, and power of attorney to convey, 
is a " conveyance " .... 

warranty of, in mortgage .... 

Too extensiTe disposition by virtue of power or 

charge is not void ...... 157 84 

Transcript of record of instrument can not be read in 
evidence unless acknowledgment or proof has also 
been recorded ...... 267 117 

Transfer in fraud of creditor by deceased insolvent 
debtor may be disafllrmed, treated as void and 
resisted by creditor for over $100 . . . 232 106 

may be disaffirmed, treated as void, resisted by execu- 
tor, administrator, receiver, assignee, or other 
trustee ....... 

real property, capacity to transfer .... 

Transferee of trust property protected 
Transferring any estate or interest, any instrument 
except will, lease for not over 3 years, executory 
contract, or power of attorney to convey, is a " con- 
veyance" 240 109 

Treasnrer of Connecticut, recording conveyances 

made by 272 118 

Treat as -void any act in fraud of creditors, an executor, 
administrator, receiver, assignee or other trustee 
may 232 106 

any fraudulent act of deceased insolvent debtor, creditor 

for over $100 may 232 106 

Trust, any other than to receive and apply rents and profits, 
rieht andinterestof beneficiary maybe transferred 

arising by implication of law, § 92 does not apply 

§§ 70 to 73 do not affect 

authorized, when valid as a power ... 

can only be created by wntten instrument . 

created but not contained in conveyance to trustee, con- 
veyance shall be absolute as to subsequent credi- 
tors aud purchasers without notice ... 84 72 

estate which is undivided, share may be ordered sold by 

court 85 72 

for benefit of creditors shall cease after 25 years, and 

revert to assignor ...... 90 74 

for receipt of rent and profits, beneficiary entitled to 

remainder in whole or in part may release . . 83 72 

implied or resulting, shall not defeat title of bona fide 

purchaser without notice .... 75 71 

in favor of person paying consideration, where grantee 

takes without former's knowledge ... 74 70 

interest, what may be alienated .... 83 72 

may arise or be extinguished by operation or implica- 
tion of law ....... 207 95 

not ■=■ ecifled in § 76 vests no estate in trustee, but may 

bf valid as a power ..... 79 71 

not to descend ....... 91 74 

power, proper execution may be adjudged .where exe- 
cution defective ...... 143 82 



232 


106 


3 


60 


84 


72 



83 


72 


92 


74 


73 


70 


79 


71 


207 


95 



SECTION. 


PAGE. 


137 


81 


162 


85 


78 


81 


84 


72 


86 


73 



162 ANALYTICAL INDEX. 



when imperative ..... 

powers are affected by §§ 91, 92, 93 

property, creditors can claim surplus income of 
transferee of, protected .... 

when may be leased by trustee 

res^t?tem/a^Jor of another where grantee, in violation 
of trust, purchases with money or property of 
former ........ 74 70 

of creditors of latter, from grant to one, when con- 
sideration paid by another .... 74 70 

to receive and apply rents and profits, beneficiary can- 
not assign or transfer right .... 83 72 

valid as a power, property remains or descends subject 

to execution of trust as pow^r .... 79 71 

Trustee can not he removed, nor resignation be accepted, 

by court if trust arise by implication of law . 92 74 

estate of shall cease and merge when beneficiary entitled 
to remainder releases his interest in rents and 
profits . 83 72 

may be aiitJiorized by court to mortgage or sell for best 
interest of estate, or for preserving or improving it 

to pay for building at end of lease .... 

may disaffirm any fraudulent act . 

may have damages for fraudulent interference with 
real property of deceased, or of insolvent corpora- 
tion, association, partnership or individual . , 

may lease for five years without leave of court 

may lease trust property when .... 

not named under grant or devise designating uncertain 
beneficiaries, supreme court shall have control 

for charitable uses, legal title shall be in Supreme 
court ........ 

of estate takes a beneficial trust power 

of express trust to Jiave whole estate .... 

of passive trust not to take ..... 

of trust with power of disposition, prior to 1830, not 
divested ....... 

on death of last trustee, trust estate vests in Supreme 
court ........ 

resignation or removal of, appointment of successor . 

shall have legal title under grant or devise designating 
uncertain beneficiaries ..... 

who is for any cause unsuitable person may be removed 

who is insolvent insijjl)e removed .... 

who threatens to violate trmst may be removed 

who violates trust Jna,J^ievev[lOYe6. .... 

whose insolvency is apprehended may be removed 

with power of selection unexecuted, on death of, bene- 
ficiaries share equally ..... 140 82 
Trustee's deed or grant of appurtenances and of estate 

of testator and grantor ..... 220 101 

estate ceases when purpose for which trust created 

ceases ........ 89 74 

lease for over 5 years made before 1895 may be con- 
firmed by court 86 73 

sale, conveyance, or act in contravention of trust ex- 
pressed in instrument creating estate is void 
Trustees, estate vested in, is always, in joint tenancy 
Trusts and uses abolislied ..... 
Trusts, express, purposes for which may be created 

for benefit of creditors, termination of . 
Ttvo or more mortgages on property in adverse pos- 
session have preference according to time of 

record 225 105 

Ulster county, Article VIII. does not anply to leases for 
life or lives, or for years heretofore made (1 Oct., 

1896) 240 109 

Under-lessee not affected by surrender and removal of 

original lease ...... 196 92 

Undisposed profits belong to next eventual estate . 53 68 

Undivided share or part, being trast estate, court may 

order sale ....... 85 72 

Unequal degree, lineal descendants of, take per stirpes 

and not per capita ...... 283 121 

United Kingdom of Great Britain and Ireland, ac- 
knowledgments and proofs in . . . . 250 111 



85 


72 


86 


73 


232 


106 


232 


106 


86 


73 


86 


73 


93 


75 


93 


75 


144 


82 


80 


72 


73 


70 


72 


70 


91 


74 


92 


74 


93 


75 


92 


74 


92 


74 


92 


74 


92 


74 


92 


74 



85 


72 


56 


68 


71 


70 


76 


71 


90 


74 



REAL PROPERTY LAW. 



163 



United States oiBcial, acknowledgments or proof before, 
prior to 1 April, 1896, confirmed 
talcing acknowledgments or proof must affix seal 
UnlaTV'ful purpose, liability of landlord, premises occu- 
pied for ....... 

Unrecorded conreyance void as to subsequent bona 
fide purchaser ..... 

Unsuitable person from any cause may be removed as 
trustee ....... 

Use of terms in Article IX. (Descent) . . . 

in Article VII. (Conveyances and Mortgages) . 
Using lonjs forms of covenants, penalty $5 
Uses and Trusts ...... At 

abolished ........ 

Uses, existing executed, are confirmed 
Valid remainders, efi'ect of determination of precedent 
estate before contingency .... 

Taluable consideration for conveyance of any estate 
or interest makes grantee a " purcliaser" 
M;a)t^ of, not sole ground of adjudging conveyance or 
charge fraudulent ...... 

without notice, title of purchaser or encumbrancer not 
aflfected or impaired by Article YII 
Talue of advancement, acknowledged by child in 
writing, or else estimated .... 

Vested estate already created, is subject to § 56 . 
jfif^wi'e esfa^e, when vested .' . 
is included in term "estate" or "interest in real 
property" ... . . . . 

not altered ....... 

Vesting of future estate not prevented by power of 
appointment ...... 

Vests only on delivery of grant, estate or interest con- 
veyed ........ 

Violator of trust may be removed as trustee 
Void as to creditors, purchasers or encumbrancers, void 
as to their heirs, successors, personal representa- 
tives or assigns, conveyance .... 

Conveyance or assignment with intent to hinder, delay 
or defraud creditors ..... 

with intent to defraud purchasers or encumbrancers 
executor, administrator, receiver, assignee, trustee, 
or creditor for over $100, may treat any fraudu- 
lent act as ...... . 

unless written, contract to sell, or to lease for more 
than 3 years ....... 

TVant of valuable consideration not sole grouBd of 

adjudging conveyance or charge fraudulent 
"Warranties, lineal and collateral, have been abolished 
"Warranty of title, covenant of 

in mortgage ...... 

Westchester County register, not county clerk, is re 
cording officer ..... 

"What estate passes by grant or devise 

what trust interest may be alienated 
"When a trust power is imperative 

when and how alien may acquire and transfer real 
property ...... 

when authorized trust valid as a power 
when certificate of acknowledgment or proof to state 
time and place ..... 

ivhen collateral relatives to inherit 

when contract to lease or sell void 

when creditors may compel execution of trust power 

when county clerk's authentication necessary 

when devise operates as execution of power 

when direction of grantor does not render power void 

of power need not be followed 

when dower barred by jointure 

by misconduct ...... 

by precuniary provisions .... 

when estate for life of third person is freehold, when 
chattel real ...... 

for life or years is changed into fee 

in common, when in joint tenancy . 

of trustee ceases ...... 



SECTION. PAGE. 



257 
257 

201 

241 

92 

280 

205 

274 

tide III. 

71 

70 

48 

240 

229 

230 

295 
56 
30 

205 

1 

31 

209 
92 



228 



227 
226 



232 
224 

229 

217 
218 
219 

240 

210 

83 

137 

5 
79 

256 
286 
224 
142 
259 
156 
149 
150 
177 
176 
178 

24 

129 

56 

89 



113 
113 

03 

109 

74 
121 
95 
118 
69 
70 
70 

67 

109 

106 

106 

124 
68 
64 

95 
60 

64 

95 

74 

105 

105 
105 



106 

105 

106 
97 
97 

98 

109 
96 

72 
81 

60 
71 

113 

122 
105 

82 
114 

84 
83 
83 
88 
85 
88 

63 

80 
68 
74 



164 



ANALYTICAL INDEX. 



when expectant estates are deemed created 
are defeated ..... 

when father inherits .... 

when future estates are vested, when contingent 
when grant takes effect .... 

when grantee of power has absolute fee 
when heirs of life tenant take as purchasers 
when more than one 'beneficiary, distribution 
when mother inherits .... 

when other authentication than county clerks, is neces 

sary 
when power is a lien 
is irrevocaljle 
of ^disposition absolute .... 

when provision in lieu of dower is forfeited 

when remainder not limited on contingency defeating 

precedent estate, takes eflfect 
when remainderman may pay interest owed by life 
tenant ........ 

when remainders take effect if estate be for lives of 
more tban two persons .... 

when rent is apportionahle .... 

ivhen right to possession creates legal ownership 
tvhen tenant may surrender premises 
when to Take Eftect; Laws Repealed 
when to take effect (1 Oct., 1896) 
when trustee may convey property . 
when trustee may lease trust property 
when widow to elect between jointure and dower 
when written conveyance necessary . 
"Who may hold real property .... 

who may take by descent, devise or purcliase 
"Whole sum shall become due, agreement or covenant 

in mortgages and bonds . 
Widow^ barred of dower for misconduct as wife 
has dower ...... 

in lands mortgaged before marriage except as against 
mortgagee ....... 

in lands mortgaged for purchase-money except as 
against mortgagee ..... 

in surplus of sale under purchase money mortgage 
may bequeath crop in land beld in dower . 
Tnust elect as to dower in exchanged lands 
not entitled to &o^A dower and jointure or precuuiary 
provision ...... 

of alien entitled to dower, when 

of mortgagee not endowed .... 

to elect between devise and dower 
when to elect between jointure and dower . 
IVidoi^-'s do-wer barred by jointure . 

bv pecuniary provisions .... 

^IVido^v's provision in lieu of dower forfeited when 
"Widow's quarantine ..... 

"Wife of alien, herself a citizen, may hold convey, etc. 
"Wife's misconduct bars her dower as widow 
"Will, estates at, are chattel interests ; not liable as such 
to sale on execution .... 

'Will is not a " conveyance" .... 

limitation by, Article IX. (Descent) does not affect 

not included in the term *^ conveyance" 

purporting to convey all real property of testator oper 

ates as execution of a power to devise 
termination of tenancy at will by notice 
Within the state, acknowledgments and proofs 
"Without the state, recording conveyances acknowledged 
or proved, when parties and certifying officer dead 
Witness must subscribe at same time in order to prove 
execution of conveyance ..... 

or acknowledgment necessary to grant of fee or free- 
hold before it can take effect against subsequent 
purchaser or encumbrancer .... 

proof by subscribing ...... 

to conveyance, compelling to testify 
refusing or neglecting to testify forfeits $100 and may 
he sent to prison without bwil by notary or other 
officer ........ 



SECTION. 


PAOB. 


54 


68 


47 


66 


284 


122 


30 


64 


209 


95 


131 


80 


44 


66 


138 


82 


285 


122 


260 


114 


127 


80 


128 


80 


133 


81 


182 


89 



45 

233 

35 

192 

72 

197 

Article X. 

301 

85 

86 

179 

207 

2 

2 

219 
176 
170 

172 

173 
174 
185 
Kl 

179 
5 

175 
180 
179 

177 
178 
182 
184 
6 
176 

23 

240 
280 
205 

156 
198 

248 

262 

242 



66 

107 

65 
91 
70 
92 
125 
125 
72 
73 
88 
95 
60 
60 

98 
87 
87 

87 

87 
87 
89 

87 

88 
60 
87 
88 
88 
88 
88 
89 
89 
61 
87 

63 
109 
121 

95 

84 

92 

110 

115 

109 



208 


95 


253 


112 


254 


112 



254 



112 



REAL PROPERTY LAW. 163 

SECTION. TXQS. 

Witne«»e« dead, proof of conveyance . . . 263 115 

'Woman citixen, married to alien, may take, hold, con- 
vey or devise ...... 6 61 

TV'oniau dying xcUhoui lawful issue, inheritance descend* 

to her illegitimate chUd 289 123 

TVonien, acknowledgments and proofs ■within the state 

by married same as unmarried .... 251 112 

ITords of Inheritance, or "heirs," not necessary to 
create and convey estate in fee 

"Written conveyance, when necessary 

TFritten instrument is a "conveyance" except will, 
lease for not over 3 years, executory contract, and 
power of attorney to convey .... 

Written notice of not less than 30 days to terminate 
tenancy at will or by sufferance 

Years, estates for, are chattels real .... 
tenant holding over at expiration after 30 days' notice 
to quit liable to double rent and damages. IRo 
equitable defence to this .... 200 »3 

ITears, tenant for, conveying greater estate than he 
possesses does not work forfeiture, but passes all 
he has 212 96 



205 
207 


95 
95 


240 


109 


198 
23 


92 
63 



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